La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers

ORIGINAL PUBLISHED ON CDRE SITE (20 AVRIL 2016)

par Pierre Berthelet, CDRE

La situation que connaît actuellement l’Union européenne n’aura échappé à personne. Qu’il s’agisse de la crise migratoire ou de la crise terroriste générée par les attentats à répétition en 2015 et en 2016, le remède préconisé par les États membres par la voix du Conseil et du Conseil européen, consiste à vouloir sécuriser davantage les frontières extérieures de l’Union européenne.

La protection renforcée de celles-ci constitue l’enjeu majeur de la lutte menée contre le phénomène terroriste, dont l’agenda converge désormais clairement avec la politique européenne en matière migratoire, comme l’atteste la communication de la Commission du 6 avril 2016 intitulée « des systèmes d’information plus forts et plus intelligents pour les frontières et la sécurité ». Le texte affirme à cet égard très clairement une « interconnexion dynamique » entre police, migration et gestion des frontières.

La crainte actuelle est, en particulier, le phénomène des combattants de l’État islamique venant d’Irak et de Syrie. L’organe de coordination antiterroriste belge, l’OCAM, a d’ailleurs souligné, le 19 avril 2016, un risque considérable d’attentat de la part de ces combattants, des Européens partis faire le Jihad au Moyen-Orient et rentrant aguerris (phénomène dit des « returnees »).

Nouveaux défis, mais anciennes solutions donc. L’observateur ne peut qu’avoir une impression de déjà-vu : les choix de ces derniers mois formulés par les chefs d’État et de gouvernement, inspirant les orientations contenues dans cette communication, ressemblent, à bien des égards, à ceux des Conseils européens de Laeken de 2001, de Séville de 2002 ou encore de Thessalonique 2003. À l’époque, l’Union était déjà confrontée aux problématiques du terrorisme et d’échouage de migrants sur les côtes européennes. Les agendas antiterroriste et migratoire se mêlaient alors autour de la sécurisation des frontières extérieures pour éviter toute intrusion possible d’agents d’Al-Quaïda dans l’UE, dissimulés dans les colonnes de migrants, jetant ainsi les fondations du projet des frontières électroniques (smart borders).

Anciennes solutions, mais nouveaux défis néanmoins. La communication du 6 avril 2016, accompagnée d’une proposition de règlement instituant le « Système Entrée-Sortie » (correspondant à une révision du précédent projet présenté en 2013, jugé trop onéreux par les États membres), marque un nouvel épisode dans la création des frontières électroniques européennes. Elle s’inscrit dans le contexte d’enjeux très actuels : la protection des frontières extérieures au prisme de la lutte antiterroriste a trait à deux problèmes distincts, celui des « combattants étrangers » (1) et celui de la fraude documentaire (2).

Dans le premier cas, il s’agit de contrôler les flux de voyageurs sortants pour empêcher ces « combattants étrangers » (foreign fighters), c’est-à-dire les jeunes Européens désireux de partir faire le Jihad au Moyen-Orient. Dans le deuxième cas, il s’agit de contrôler les flux de population, pour la plupart fuyant la guerre dans cette région. En réalité, ces deux problématiques se recoupent car la fraude documentaire concerne le contrôle des titre de voyage dont sont porteurs les flux de voyageurs, y compris les migrants irréguliers rassemblés dans les hotspots. Elle a trait aussi à l’identification des « combattants étrangers » franchissant les frontières Schengen avec de faux papiers. Les solutions apportées concernent, dans un cas comme dans l’autre, un meilleur déploiement des fichiers et une plus grande interconnexion de ceux-ci (3).

Analyser la manière dont l’Union s’efforce de répondre à ces deux problématiques distinctes mais sécantes est instructif. Cette réponse s’exprime de façon commune, le recours à la sécurité digitale, c’est-à-dire l’utilisation accrue des systèmes d’information et de communication et ce, en écho au phénomène de digitalisation de la vie sociale observable dans d’autres secteurs à l’ère du Big Data, tels que la santé digitale. Les problématiques secondaires, fraude documentaire et combattants étrangers, se trouvent au cœur de la résolution des crises migratoire et terroriste, elles-mêmes étroitement imbriquées. Il s’opère à ce propos un phénomène d’intrication immigration-terrorisme dans un contexte où s’échafaudent des capacités de gestion de crise horizontale, c’est-à-dire de polycrises.

L’interopérabilité des systèmes d’information devient alors un enjeu central, crucial même, car de son succès dépend la protection effective de l’Union. La sécurité digitale, expression archétypale dusolutionnisme technologique, constitue un nœud gordien au sens où le sort de lutte antiterroriste dépend de la réussite de l’interopérabilité des systèmes d’informations, qu’ils soient à finalité sécuritaire ou migratoire, l’une et l’autre apparaissant désormais mêlées.

1. Verrouiller les frontières pour résoudre le problème des combattants étrangers 

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WORTH READING : U.S.-EU Cooperation Against Terrorism

REPORT PUBLISHED BY STATEWATCH

by Kristin Archick 

Summary

The September 11, 2001, terrorist attacks on the United States and the subsequent revelation of Al Qaeda cells in Europe gave new momentum to European Union (EU) initiatives to combat terrorism and improve police, judicial, and intelligence cooperation among its member states. Other deadly incidents in Europe, such as the Madrid and London bombings in 2004 and 2005, respectively, injected further urgency into strengthening EU counterterrorism capabilities.

Among other steps, the EU has established a common definition of terrorism and a common list of terrorist groups, an EU arrest warrant, enhanced tools to stem terrorist financing, and new measures to strengthen external EU border controls and improve transport security.

Over the years, the EU has also encouraged member states to devote resources to countering radicalization and terrorist recruitment; such efforts have received renewed attention in light of concerns about the threats posed by European fighters returning from the conflicts in Syria and Iraq, highlighted most recently by the November 13, 2015, attacks in Paris, France.

Promoting law enforcement and intelligence cooperation with the United States has been another top EU priority since 2001. Washington has largely welcomed enhanced counterterrorism cooperation with the EU. Since 9/11, contacts between U.S. and EU officials on police, judicial, and border control policy matters have increased substantially.

A number of U.S.-EU agreements have been reached; these include information-sharing arrangements between the United States and EU police and judicial bodies, U.S.-EU treaties on extradition and mutual legal assistance, and accords on container security and airline passenger data.
In addition, the United States and the EU have been working together to curb terrorist financing, strengthen transport security, and address the foreign fighter phenomenon.
Nevertheless, some challenges persist in fostering closer U.S.-EU cooperation in these fields.
Among the most prominent and long-standing are data privacy and data protection issues.
The negotiation of several U.S.-EU information-sharing agreements, from those related to tracking terrorist financial data to sharing airline passenger information, has been complicated by EU concerns about whether the United States could guarantee a sufficient level of protection for European citizens’ personal data.
EU worries about U.S. data protection safeguards and practices were further heightened by the unauthorized disclosures of U.S. National Security Agency (NSA) surveillance programs in mid-2013 and subsequent allegations of U.S. collection activities in Europe.
Other issues that have led to periodic tensions include detainee policies, differences in the U.S. and EU terrorist designation lists, and balancing measures to improve border controls and border security with the need to facilitate legitimate transatlantic travel and commerce.
Congressional decisions related to data privacy, intelligence-gathering, border controls, visa policy, and transport security may affect how future U.S.-EU counterterrorism cooperation evolves.
EU officials have welcomed passage of the Judicial Redress Act (P.L. 114-126) to provide EU citizens with a limited right of judicial redress for privacy violations in a law enforcement context, but they have expressed unease with some provisions in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (passed as part of P.L. 114-113 in the wake of the Paris attacks and heightened U.S. concerns about European citizens fighting with terrorist groups abroad).
Given the European Parliament’s growing influence in many of these policy areas, Members of Congress may be able to help shape the Parliament’s views and responses through ongoing contacts and the existing Transatlantic Legislators’ Dialogue (TLD). This report examines the evolution of U.S.-EU counterterrorism cooperation, current issues, and the ongoing challenges that may be of interest in the 114th Congress.

NB Also see CRS Report R44003, European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the United States, coordinated by Kristin Archick.

FULL REPORT : U.S.-EU  Cooperation Against  Terrorism  Continue reading

TERRORISM : EDRI RECOMMENDATIONS FOR THE EP REPORT ON TERRORISM

FOR A GENERAL OVERVIEW OF THE LEGISLATIVE PREPARATORY WORKS OF THE EU DIRECTIVE ON TERRORISM SEE HERE 

EDRI Recommendations for the European Parliament’s
Draft Report on the Directive on Combating Terrorism (NDR : emphasis are added)

In the view of the Civil Liberties, Justice and Home Affairs Committee (LIBE)’s legislative work on the Directive on Combating Terrorism , European Digital Rights (EDRi) would like to make a set of recommendations regarding the provisions falling within our scope of work, i.e. the protection of human rights in the digital environment. The absence of comments on certain provisions shall not be interpreted as an endorsement.

EDRi supports the aim of achieving a united, coherent and effective response to terrorism. Notwithstanding the importance of ensuring that adequate measures are in place to fight terrorism, EDRi is concerned about the speed that this file is taking. Terrorism is a very complex issue and laws must be balanced, smart and work in times of crisis. With the view to being constructive in this process, EDRi encourages the rapporteur, shadow rapporteurs and LIBE members to consider EDRi’s recommendations outlined before, when and after proposing amendments. EDRi’s wording proposals are based on the Commission’s proposal unless expressly specified (in the latter case, to explain the changes needed to the rapporteur’s draft report).

I. Human Rights Impact assessment needed

EDRi regrets the absence of an impact assessment. This is in contradiction with the EU Better Regulation Guidelines and the European Commission’s Better Regulation tool No. 24. While parts of the text are similar to the 2008 Framework Decision, six years is a very long time to wait for a review of an issue of such importance. In addition, the Council and the Parliament rapporteur are proposing new elements without any obvious evidence base.

Civil society has not been awarded the opportunity to provide input, evidence or expertise prior to the proposal of the Directive. The justification given by the Commission was based on the urgency of the file. However, this contradicts the Member States’ proposal to transpose the Directive not in twelve months as proposed by the European Commission and the EP rapporteur, but in twenty-four months.
EDRi’s proposal:

We urge the European Parliament to ask the European Commission to conduct an Impact assessment immediately.

II. Strong and meaningful human rights safeguards

a) General clause

Contrary to the Framework Decision 2002, as amended in 2008, the Commission’s proposal for a Directive does not contain any reference to fundamental rights and freedoms in the Articles.

Recital 19 should be deleted and replaced by a new Article

We consider it problematic that Recital 19 states that the Directive respects fundamental rights, since this is not necessarily a given. A similar phrasing was also used in Recital 22 of Directive 2006/24/EC (the Data Retention Directive), which was later ruled to be in violation of the Charter of Fundamental Rights of the European Union. An adequate fundamental rights clause should emphasise the limitations on fundamental rights that will be put in place as a result of this Directive, as well as the duty of Member states to observe such rights when implementing it, so judges can interpret the law adequately.

EDRi thus recommends rephrasing Recital 19 and converting it into an Article, based on the wording used in Article 1(2) of the 2002 Framework Decision on Combating Terrorism, Article 2 of the 2008 Framework Decision on Combating Terrorism, Article 12 of the Convention on the Prevention of Terrorism of the Council of Europe and Article 8 of the Additional Protocol. In addition, the Directive should emphasise that restrictions on fundamental rights must be provided for by law, be necessary and proportionate for the aim pursued..

EDRi’s proposal (providing an alternative wording for the rapporteur’s AM 53):

Article 23a (new): Fundamental Rights and Principles
1. This Directive respects the principles recognised by Article 2 of the Treaty on the European Union, respects fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those set out in Chapters II, III, V and VI thereof which encompass inter alia the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought conscience and religion, the general prohibition of discrimination in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principle of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set forth in Article 21(1) of the Treaty on the Functioning of the European Union and Directive 2004/38/EC. shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in the Charter of Fundamental Rights of the European Union and Articles 2 and 6 of the Treaty on European Union, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms and International humanitarian law.
2. Restrictions to fundamental rights and freedoms must be provided for by law, be necessary and proportionate for the aim pursued.
3. This Directive has to be implemented in accordance with these rights and principles the Charter of Fundamental Rights and principles of EU law.

b) Non-discrimination

The current text of the proposed Directive seems to be neutral, but taken into account the explanatory memorandum and certain provisions of the draft Directive, this legal instrument is highly likely to be discriminatory in practice. As the UN Special Rapporteur on Counter-Terrorism and Human Rights points out, “on paper most strategies to counter violent extremism are generic. In practice, however, they tend to target specific groups determined to be most ‘at risk’ of being drawn to violent extremism”.

The current proposal only provides a rather weak and narrow non-discrimination safeguard in Recital 20, which is restricted to criminal offences. EDRi encourages the European Parliament to strengthen this provision, in line with the EU Charter and the UN’s Plan of Action against Violent Extremism leading to terrorism, which calls on UN Member States to strengthen “the rule of law, repealing discriminatory legislation and implementing policies and laws that combat discrimination, marginalisation and exclusion in law and in practice”.

EDRi’s proposal (amending the Commission’s proposal):

Recital 20
The implementation of the criminalisation under this Directive should be proportional to the nature and circumstances of each case the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discrimination.

c) Freedom of expression

The draft Directive contains provisions which can have a chilling effect on freedom of expression. In the words of the European Court of Human Rights (ECtHR), freedom of expression applies to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

The Directive must ensure that “any restrictions on freedom of expression are clearly and narrowly defined and meet the three-part test of legality, proportionality and necessity”, as the UN Plan of Action Against Violent Extremism outlines. The Directive should help prevent abusive and arbitrary practices in Member States (see our Annex). Hence, EDRi encourages policy makers to adopt an Article which includes wording based on Recital 14 and Article 2 of the Framework Decision 2008.

EDRi’s proposal:

Article 23b (new) Freedom of expression
1. Nothing in this Directive may be interpreted as being intended to reduce or restrict the dissemination of information for the expression of an opinion. The expression of radical, polemical or controversial views in the public debate on sensitive political questions, including terrorism, fall outside the scope of this Directive and, in particular, of the definition of public provocation to commit a terrorist offence.
2. This Directive shall not have the effect to take measures in contradiction of fundamental principles relating to freedom of expression, including freedom of the press and the freedom of expression resulting from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.

c) Emergency situations

The Directive must work for situation of crisis or emergency, in line with Article 15 of the European Convention on Human Rights (ECHR). In this sense, the UN Plan of Action on violent extremism leading to terrorism specifies that “certain rights are non-derogable even in time of public emergency which threatens the life of the nation”. As the five UN Special Rapporteurs highlighted regarding France’s situation after the Paris Attacks, “[w]hile exceptional measures may be required under exceptional circumstances, this does not relieve the authorities from demonstrating that these are applied solely for the purposes for which they were prescribed, and are directly related to the specific objective that inspired them.”

EDRi’s proposal:

Article 23c (new) Emergency situations and fundamental rights
In time of war or other public emergency threatening the life of the nation, Member States may take measures to derogate certain rights, in line with EU and International law. Such circumstances do not relieve the authorities from demonstrating that the measures undertaken are applied solely for the purpose of combating terrorism and are directly related to the specific objective of combating terrorism.

d) Effective remedies for Human Rights violations

The UN’s Plan of Action against violent extremism leading to terrorism also asks UN Member States to ensure accountability for human rights violations “through criminal procedures adhering to due-process guarantees.” This is absent from the European Commission’s proposal. EDRi’s proposal is based on the model clause proposed in the former UN Special rapporteur’s report on best practices when countering terrorism:

EDRi’s proposal:

Article 23d (new) Right to effective remedies
1. Any person whose fundamental rights and freedoms have been violated in the exercise of counter-terrorism powers or the application of counter-terrorism law has a right to a speedy, effective and enforceable remedy.
2. Member States’ judicial authorities shall have the ultimate responsibility to ensure that this right is effective.

e) Human rights safeguards for specific offences

All provisions need to be read in compliance with fundamental rights and freedoms. In addition, when referring to a concept that does not have a harmonised definition, EU institutions should provide a definition in Article 2, in order to comply with the principle of legality so that, as the UN Special Rapporteur on Human Rights and combating terrorism stated, “criminal liability is narrowly and clearly defined.”

III. Terrorist offences

• Article 2: definitions

The draft Directive contains many legal concepts which can mean different things. The Directive needs to comply with the principle of legality.

EDRi’s proposal:

Should the Directive contain legal terms which are not defined in the other provisions, Article 2 should be amended to add the appropriate definitions. For specific examples, please see our recommendations per provision in this document.

• Recital 5 and Article 3: terrorist offences

Article 3 defines the concept of ‘terrorist offences’. Recital 5 says that the Member States’ definition of terrorist offences should cover forms of behaviourpunishable also if committed through the Internet, including social media”. However, Articles 3(1)(b) and 3(2)(i) are not clear about what this means in practice.

• Recital 5

It is not clear why a reference to the Internet is needed. Criminal offences should be technology-neutral insofar as possible.

EDRi’s proposal:

Recital 5
Taking into account of the evolution of terrorist threats and legal obligations to the Union and Member States under international law, the definition of terrorist offences, including offences related to a terrorist group and offences related to terrorist activities, should be further approximated in all Member States, so that it covers more comprehensively conduct relate to in particular foreign terrorist fighters and terrorist financing. These forms of behaviour should be punishable also if committed through the Internet, including social media.

◦ Article 3(1)(b) on ‘unduly compelling a Government or international organisation ‘

Pursuant to Article 3(1)(b), an offence may qualify as a terrorist offence when it is committed with the aim of ‘(b) unduly compelling a Government or international organisation to perform or abstain from performing any act’. Notwithstanding its use in existing legislation, the use of the word ‘unduly‘ in this context is problematic, since it lacks a clear definition or legal import. An improved phrasing might refer to ‘using violence or the threat of violence to compel’, as we do not see how any non-violent attempt at influencing governmental policy could qualify as terrorism. Without such a modification, this provision risks affecting legitimate forms of protest and civil disobedience under the concept of terrorism. For instance, as the UN Human Rights Committee states and the UN Special Rapporteur on Human Rights and Countering Terrorism endorses, “no site or information dissemination system should be prohibited from publishing material solely on the basis that it may be critical of the government or the social system espoused by the government”.

EDRi’s proposal:

Article 3
1. (…)
(b) using violence or the threat of violence to compel or seek to compel unduly compelling a Government or international organisation to perform or abstain from performing any act.

◦ Article 3(2)(i)

Article 3(2) defines what ‘intentional acts’ means. EDRi considers Article 3(2)(i)’s wording is too broad and could lead to arbitrary and discriminatory abuses. EDRi suggests to bring it into line with Recital 13.

EDRi’s proposal:

Article 3
2. (…)
(i) seriously threatening to commit any of the acts listed in points (a) to (h), on the basis of objective, factual circumstances.

• Article 15: relationship to terrorist offences

If the amendments we suggest are adopted, the proposed text from the Commission appears unproblematic.

• Article 16: aiding or abetting, inciting and attempting

Article 16 is intended to prohibit ancillary offences related to terrorist offences, namely aiding, abetting, inciting and attempting. We see a significant overlap with the provisions under Title III (Offences related to Terrorist Activities), since these are also aimed at prohibiting (specific forms of) assistance for terrorist offences. It would appear that many of these offences related to terrorist activities could also be treated under the more general principles referenced in Article 16. Conversely, many related offences currently covered by Article 16 have already found more specific treatment in Title III. This confusion generated by this dual approach is best illustrated by the fact that aiding of terrorism (e.g. through financing or providing training) itself becomes a specific offence.

As a result of this extension, the Directive’s scope touches on activities with little to no direct relationship to actual terrorist acts. In the interest of legal certainty and good lawmaking, we would encourage a closer specification of the interaction between Article 16 and Title III of the Directive, with the aim of reducing overlap between these rules. In addition, Article 16(2) is redundant as Article 5 is the provision dealing with incitement to terrorism.

Therefore, EDRi proposes to delete it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

EDRi’s proposal:

Article 16
1. Each Member State shall take the necessary measures to ensure that aiding or abetting an offence referred to in Articles 3 to 8 and 11 to 14 is made punishable.
2. Each Member State shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 14 is made punishable.
3. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, 9 and 11 to 14, with the exception of possession as provided for in point (f) of Article 3(2) and the offence referred to in point (i) of Article 3(2), is made punishable.

IV. Cooperation among Member States, their authorities and EU

• Information sharing about convicted individuals or suspects

EDRi agrees with the EP rapporteur’s intention in AM 17, but suggests improvements in order to comply with the principle of presumption of innocence.

EDRi’s proposal:

Recital 15c (amending the rapporteur’s proposal)*
In order to prevent and combat terrorism, a closer cross-border cooperation among the competent national and European authorities is needed with regard to expedient exchange of any relevant information from criminal records or other available sources on radicalised individuals, and in particular on individuals who are or have been subject to criminal proceedings, are suspects of a criminal offence or asset freezing. This provision is without prejudice to the [official name of police data protection Directive].

* Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 17.

• ‘Electronic evidence’

Whereas the Commission remains silent on this issue, LIBE’s Draft report contains two proposals on (undefined) ‘electronic evidence’.

Regarding AM 19 and AM 20 of the Rapporteur’s Draft Report (recitals 15e and 15f), EP’s rapporteur mentions “the issues related to electronic evidence”, but does not explain what issues she is referring to or the analysis available that demonstrate the existence of a real issue. Should policy-makers wish to include a provision on ‘electronic evidence’:

• they should first define what ‘electronic evidence’ means (Article 2);

• be future-proof, being compatible with the development of technology and innovation; and

• merge both (new) recitals.

EDRi’s proposals:

Recital 15e (new) amending the rapporteur’s proposal)*
Considering that terrorist organisations rely heavily upon various electronic tools, the internet and social media to communicate, promote, and incite terrorist acts, to recruit potential fighters, to collect funds, or to arrange for other support for their activities, the issues related to electronic evidence create challenges in investigations and prosecutions of terrorist offences. Member States should therefore cooperate among each other, notably through Eurojust, to ensure a coordinated approach for the development of any necessary, proportionate and effective measures that may prove efficient in dealing with the gathering, sharing, and admissibility of electronic evidence, in compliance with [official name of police data protection directive].

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 19.

Recital 15f(new) amending the rapporteur’s proposal)*

A Eurojust report of November 2014 notes that the growing sophistication and wider use of anonymisers, proxy servers, the Tor network, satellite links and foreign 3G networks create additional challenges to the gathering and analysis of electronic evidence, which are rendered even greater by the storage of data in the cloud. Member States should therefore cooperate among each other, in particular through Eurojust, to identify and remove possible obstacles that may occur in mutual legal assistance requests for electronic evidence.

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 20.

• Professionalism of authorities and Human Rights training

Member State authorities vested of powers to combat terrorism must have received relevant training, including training on human rights; be accountable; and be subject to judicial oversight. EDRi’s proposal is based on wording used in para. 50 of the Recommendation of the UN Secretary-General of 24 December 2015.

EDRi’s proposal:

Recital 4c (new)
Member States should strengthen the professionalism of security forces, law enforcement agencies and justice institutions; and ensure effective oversight and accountability of such bodies, in conformity with international human rights law and the rule of law. This includes human rights training to security forces including on how to respect human rights within the context of measures taken to counter violent extremism and terrorism.

IV. Internet related provisions

In general

The Commission’s Draft Directive, or indeed all the texts on the table at the moment, refer to the Internet as being negative for society. There is no mention (not even in a recital) of the essential role of the Internet in promoting and protecting Human Rights and Fundamental Freedoms within the Union and in Third Countries. EDRi thus advises the European Parliament not to harm the progress the EU has made in the protection of Human Rights online within and outside our borders.

EDRi’s proposal:

Recital X (new)
The Internet plays an essential role in promoting values of peace, tolerance and solidarity as well as promoting and protecting Human Rights and Fundamental Freedoms within and outside the European Union.

• (new) Recital 4a – Internet Referral Units

EDRi is concerned with AM 3 of the rapporteur’s draft Report and appears unsuited to this Directive: the first part (up to “jurisdictional conflicts”) does not have any obvious link with the last part of the recital. Similarly, the second half of the recital lacks clarity; it does not specify what ‘flagging’ (notifying?) of content entails, to whom it must be ‘flagged’, by whom that content would have to be removed, and under what procedure this might take place. This Directive is aimed at criminalisation of terrorism offences rather than creating a framework of law enforcement measures. The Directive’s operative part does not contain any reference to these ‘special units’ or their activities. This recital therefore bears little relevance to the instrument as a whole. We see this as being a political statement rather than meaningful legislation.

Therefore, EDRi proposes NOT to adopt it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

Recital 4b (alternative to AM 3, Rapporteur’s Draft Report)*
Certain forms of internet use are conducive toTerrorist radicalisation, enabling fanatics throughout the world to both online and offline involves radicalised individuals connecting with each other and recruiting vulnerable individuals without any physical contact whatsoever and in a manner that is difficult to trace. Every Member State should set up a special unit tasked with flagging identifying illegal content on the internet and with facilitating the investigation, detection and removal of such content. Member States should publish statistics on numbers of reports, investigations and prosecutions taken as a result of these activities. The creation by Europol of the Internet Referral Unit (IRU), responsible for detecting illegal content and supporting Member States in this regard, while fully respecting the fundamental rights of all parties involved, in particular with regard to predictability of the measures taken, represents a significant step forward in this regard. Member States’ units should also cooperate with the Union counter terrorism coordinator and the European Counter Terrorist Centre within Europol, as well as with civil society organisations active in this field. Member States should cooperate with each other and with the relevant Union agencies on these matters.

* Comments:
Parts in bold and strick-through reflect the changes introduced vis-à-vis AM 3 of the rapporteur’s Draft Report.

These changes create accountability and judicial responsibility and allow individuals to adapt their conduct to the law (predictability). If these units had the option to simply refer unwelcome content to internet providers, with no transparency regarding investigations, legal assessment or prosecutions, UN’s standards would not be complied with. As the former Special rapporteur on the promotion and protection of Human Rights and fundamental freedoms while countering terrorism stated in its report “Ten areas of best practices in countering terrorism”, “[w]here the law relating to terrorism confers discretionary powers upon public agencies, adequate safeguards, including judicial review, must exist for the purpose of ensuring that discretionary powers are not exercised arbitrarily or unreasonably.”

Intent as a minimum standard for all terrorist offences, with a high standard of proof

• Recital 13

EDRi welcomes the attempt made in Recital 13 to clarify the meaning of ‘intent’ as used in the Directive. Distinguishing terrorist offences under this Directive from innocent activities such as travelling or debating is done primarily on the basis of intent. It is therefore crucial that intent is not merely imputed to suspects, but that it is proven on the basis of objective, factual circumstances. The proposed AM 13 heightens the standard set in the initial proposal, and EDRi therefore welcomes it, seconding the EP’s rapporteur justification. However, EDRi suggests to remove ‘as much as possible’, since this means that the intention does not have to be based on objective, factual circumstances.

EDRi’s proposal (amending the Commission’s proposal):

Recital 13
With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may should be inferred from objective, factual circumstances.

Unambiguous and limited rules on incitement of terrorism

• Article 5: Public provocation to commit a terrorist offence

EDRi is concerned about the ambiguous phrasing and broad scope of Article 5 and its potential for abuse, as national anti-terrorist provocation rules have been abused in cases which appear to bear little connection to actual terrorist offences (see the Annex to this document). EDRi welcomes the intention of the EP’s rapporteur to restrict Article 5. However, at this stage, none of the versions of Article 5 regarding “glorification of terrorism” comply with UN.

The former Special Rapporteur on human rights and counter terrorism stated (and the current rapporteur has supported this approach) that “for the offence of incitement to terrorism to comply with international human rights law, it
(a) must be limited to the incitement to conduct that is truly terrorist in nature;

(b) must restrict freedom of expression no more than is necessary for the protection of national security, public order and safety or public health or morals;

(c) must be prescribed by law in precise language, and avoid vague terms such as “glorifying” or “promoting” terrorism;

(d) must include an actual (objective) risk that the act incited will be committed;

(e) should expressly refer to intent to communicate a message and intent that this message incite the commission of a terrorist act; and

(f) should preserve the application of legal defences or principles leading to the exclusion of criminal liability by referring to “unlawful” incitement to terrorism.”

In addition, none of the current versions of Article 5 would prevent Member States from criminalising indirect incitement. In 2008, the UN Secretary-General recommended UN Member States that “laws should only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.” This recommendation has been backed up by the UN Special Rapporteur on Human Rights and counter-terrorism’s report of 22 February 2016 .

EDRi’s proposal (amending the Commission’s proposal) is in line with UN standards:

Article 5*
1. Member States shall take the necessary measures to ensure that the intentional and unlawful distribution, or otherwise making available of a message to the public, with the clear intent to incite the commission of one of the offences listed in points (a) to (h) of Article 3(2), where such conduct, whether or not directly expressly advocating the commission of terrorist offences, manifestly causes a clear, substantial and imminent danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally and unlawfully
2. Member States shall only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.

*Comments: On top of the comments above, EDRi deems it necessary to further clarify three of the changes:

• Intent. Article 5 must be read in conjunction with Recitals 13 and 14. In the words of the UN Special Rapporteur on Human Rights and Combating Terrorism, the liability should not be in the illegality of the content of the speech alone, but on the “speaker’s intention or the actual impact of the speech”. Otherwise, this would prevent unnecessary or disproportionate interferences with freedom of expression.

• “Unlawfully” was included in Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism and also in the model clause recommended by the UN Special Rapporteur on Counter-Terrorism and Human Rights. As the latter states, without ‘unlawfully’, the Directive would be excluding criminal liability exemptions and legal defences against it.

“Expressly or not” instead of “directly or not” (European Convention’s language). The UN Special Rapporteur on Counter-Terrorism and Human rights proposed this modification to the European Convention on Prevention of Terrorism “to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed”, while also including “coded language”. This recommendation is a reaction to EctHR case Leroy v France (2008) and is in line with Article 12(1) of the European Convention on Prevention of Terrorism.

Incitement to terrorism and websites’ blocking and removal

• Recital 7

Recital 7 should be deleted. As the Meijers Committee stated, “this recital leads to a disproportional infringement of freedom of expression including the freedom of the press”. “Member States may interpret this as meaning that, even if there is no real danger of future offences, offence to victims and their families is sufficient reason to criminalise expressions”. In addition, it is not clear whether with this recital Member States would be criminalising individuals sharing messages or images for ‘journalistic purposes’.

With regard to AM 6 in LIBE’s Draft Report, EDRi considers Internet access restrictions and websites’ removal fall outside the scope of the Directive, which is essentially to define criminal offences (see Article 1 of the proposed Directive). In addition, this does not harmonise Member State laws. Should MEPs want to address these issues, EDRi considers AM6’s text should be improved in line with Article 52 of the Charter of Fundamental Rights.

EDRi’s proposal (amending the rapporteur’s suggestion in AM 6):

Recital 7*
The offences related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population, provided that such behaviour causes a danger that terrorist acts may be committed. To strengthen actions against public provocation to commit a terrorist offence on, and also taking into account the increased use of technology, in particular the Internet, it seems appropriate for Member States may to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure legal predictability and that restrictions are limited to what is necessary and proportionate. Such measures should be subject to periodic review, to assess if the stated goal(s) of the legislation are being achieved.

*Comments: these changes show the changes regarding AM 6 of the Rapporteur’s Draft Report.

• (new) Article 14a (AM 40 of LIBE’s Draft Report)

Restricted access to certain websites can be counterproductive, as websites can be replaced easily and rapidly, making it, at best” only a “temporary disruption”.

EDRi notes and welcomes that the provision on website blocking proposed by the EP’s rapporteur under AM 40 is largely similar to that in Article 25 of Directive 2011/92/EU (Directive on combating sexual exploitation of children), which contains reasonable wording dealing with this. However, the recital misses three things:

◦ First, it should emphasise that objectives need to be clear and in a way that these measures actually necessary and proportionate.

◦ Second, restrictions must be provided for by law (Article 52 of the Charter of Fundamental Rights) and subject to periodic review and judicial control. As the UN Special Rapporteur stated in its Report of 22 February 2016, “independent judicial recourse must be available. Laws that allow executive authorities to block websites, in the absence of any initial judicial control or ex-post facto judicial recourse may not comply with this requirement”.

◦ Third, websites’ removals and access restrictions (“blocking”) are two different things. Access restrictions should only be pursued when removals at source are not achieved.

EDRi’s proposal:

Article 14a (amending the rapporteur’s text)*
1. Member States shall take the necessary measures to ensure the prompt removal of webpages publicly inciting to commit a terrorist offence, as referred to in Article 5, hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
2. Where the measures described in Article 14a(1) cannot be achieved, Member States may take measures to block access to webpages publicly inciting to commit a terrorist offence towards the Internet users within their territory. These measures must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is demonstrably necessary and proportionate, and that users are informed of the reason for the restriction, that is subject to initial judicial control and periodic review. Those safeguards shall also include the possibility of judicial redress.

Comments: * Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 40.

Rejecting or clarifying the proposed amendments on malware and ‘malicious software’

The proposed recital 11a (AM 12) and Article 14b (AM 41) by the EP’s rapporteur on her draft report on the Directive should not be adopted for three main reasons:
These proposals would not comply with the principle of legality, as ‘malware’ is not defined.
Regarding the concept ‘malware for terrorist purposes’, this appears superfluous. This AM is seeking to solve a problem whose existence is not known and never been shown. To the extent it might exist, it is already criminal under the Council of Europe’s Cybercrime Convention and Directive 2013/40/EU on attacks to Information systems, so it is unclear what added value this prohibition would bring in addition to existing European legal framework.

EDRi also has difficulties to see the value of adding ‘malicious software’ in the Directive (AM 29 and AM 30 of LIBE’s Draft Report), since these aspects are also covered in the Directive on attacks against computer system.

Accordingly, EDRi recommends not proposing any amendments neither on manufacturing or developing malware, nor on ‘malicious software’.

VI. Human rights regular review

As the UN Special Rapporteur on Counter-terrorism and Human Rights states in its report of 22 February 2016, “it is critical that States strictly monitor the human rights compliance of measures adopted to counter violent extremism [leading to terrorism], and ensure transparency in the operation of their initiatives.”

• Article 25 (transposition) and Article 26 (reporting)

Not alone the EU institutions have adopted a piece of legislation without conducting a much-needed impact assessment, but it would take at least four years for the Commission to report to the European Parliament and Member States about its assessment on the “impact and added value of this Directive on combating terrorism”. This unacceptable period of non-review could go up to five years, if the Council’s version is adopted and prolonged, particularly bearing in mind that such reports are often delayed. In addition, the Directive remains silent about the review mechanisms by Member States. This does not comply with UN standards.

In fact, the UN Secretary-General recommended UN Member States in its Plan of Action to Prevent Violent Extremism of 24 December 2015 to “review all national legislation policies, strategies and practices aimed at preventing and countering violent extremism [leading to terrorism] to ascertain whether they are firmly grounded in respect fro human rights and the rule of law, and whether they put in place national mechanisms designed to ensure compliance.” In fact, according to the former Special rapporteur on Human Rights and Counter-terrorism, the review process should comply with the following requirements:

“a) annual governmental review of and reporting on the exercise of powers under counter-terrorism laws

b) annual independent review of the overall operation of counter-terrorism laws

c) periodic parliamentary review.”

EDRi’s proposals:

Article 25 Transposition and review mechanisms by Member States
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after adoption]. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
3. Member States shall conduct annual independent reviews of and reporting on the exercise of powers under the laws falling within the scope of this Directive.

Article 26 Reporting
1. The Commission shall, by [24 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.
2. The Commission shall, by [48 12 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the impact and added value of this Directive on combating terrorism and its impact on fundamental rights and freedoms and the rule of law. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of this Directive.
3. In light of the independent reports of the European Commission, Member States shall conduct parliamentary periodic reviews.

 

ANNEX
How rules on ‘provocation of terrorism’ threaten free speech

EDRi is concerned that the Article 5 of the proposed Directive on Combating Terrorism might lead to collateral damage by harming freedom of expression. Similar rules on ‘provocation of terrorism’ and related crimes in Member States and abroad have in practice repeatedly been misapplied to cases which have little or nothing do with any commonly-held conception of ‘terrorism’.

Criminalising speech can be dangerous, with significant risks for the freedom of expression. Such measures have affected public figures such as artists and journalists who play an integral part in public debate. They have been applied to clear cases of irony and satire. Furthermore, in some cases, links to the actual threat of terrorism are highly implausible.

At the same time, law enforcement action in such cases can have a profound effect on freedom of expression. Police interference, even when it does not lead to conviction, can ‘set an example’ and create a chilling effect, pushing others to self-censor out of fear. It should also be kept in mind that attempts to censor speech often have counter-productive effects; repressing speech, especially with false positives, can do more harm to the perceived legitimacy of government institutions than to the extremist movements which they aim to counteract. Legislators must therefore proceed with caution when attempting to criminalise speech in support of terrorism.

We provide various examples such incidents in order to illustrate the risks inherent in criminalising speech, and in order to reaffirm the need for clear, limited and specific rules with adequate free speech safeguards.

France

The French government has also criminalised speech which ‘glorifies’ terrorism. This rule has led to many prosecutions, including cases criminalising expressions on social media, but also to comments made during arrests and other interactions with police.

• One of the most egregious examples is the prosecution of a sixteen-year-old posting on Facebook, who uploaded a parody of a Charlie Hebdo comic (original and parody viewable here). The teen had no prior criminal record and, according to prosecutor Yvon Ollivier did not have a ‘profile suggesting an evolution toward jihadism’. He is one of four minors prosecuted for glorification of terrorism in France. Even an eight-year-old has been interrogated.

• Another troubling example is that of the French comedian Dieudonné, known for his controversial statements. He, too, was prosecuted for a Facebook post, after he wrote ‘Je me sens Charlie Coulibaly’. For this statement, he was received a two-month suspended prison sentence.

• In numerous incidents, the statements in question were made under the influence of alcohol. In others, those prosecuted had mental health problems or learning difficulties.
United Kingdom

In the United Kingdom, the following Tweet was considered worthy of prosecution:

‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’.

The conviction of Paul Chambers for sending a “menacing” public electronic message was eventually overturned on appeal, but only after two and a half years of litigation and after having being dismissed from his job as a result. UK law enforcement has also interrogated a 10-year-old and his parents for writing in a school assignment that he lived in a ‘terrorist house’.

Finally, a case involving a four-year-old child was referred to the police because s/he drew a cucumber and subsequently referred to the drawing as a “cooker bomb” instead of a “cucumber”.

While these cases were not based on a legal prohibition on the provocation of terrorism, they do illustrate how law enforcement authorities and certain institutions are prone to overreact and harm freedom of expression in the process.

Spain

Spain criminalises the ‘glorification of terrorism’. Those convicted include:
• Two puppeteers, who were convicted for a performance in which a puppet officer held up a miniature sign falsely accusing another puppet of terrorism, using a play on words that combined Al Qaeda and the Basque Terrorist Group ETA.

• A rapper convicted and condemned for two years of prison for having composed songs that allegedly glorified terrorism.

• A rapper, who was prosecuted for his posts on Twitter.

• A 21-year-old student, who posted on Twitter inciting a terror group known as ‘the Grapo’ – even though this group is considered ‘to have long lost its operative capability’ and was last active over 25 years ago.

Outside the European Union

Incidents from outside the EU further illustrate how rules arbitrarily prohibiting speech related to terrorism can lend themselves for abuse. These are a few examples:

In Turkey, two British journalists from the popular ‘Vice’ network were detained for ‘aiding a terrorist organisation’. Turkey has also blocked entire social media websites following terror attacks, such as when they blocked Twitter and Facebook in October 2015.
In Jordan, over a dozen journalists and activists have been prosecuted under the anti-terror law, with one activist being jailed for five months for criticising the royal family’s support of Charlie Hebdo on Facebook.

In Egypt, three journalists from Al Jazeera were sentenced to three years in prison for ‘broadcasting false information’ and ‘aiding a terrorist organisation’ for their reporting on the Muslim Brotherhood.

In Cameroon, a Radio France International correspondent was prosecuted for ‘complicity in terrorism and failing to denounce acts of terror’ as an alleged accomplice of the Boko Haram group.
For more information or clarification, please contact Joe McNamee (joe.mcnamee@edri.org) and Maryant Fernández (maryant.fernandez-perez@edri.org)

Tel. +32 22742570

 

 

 

The Council adopts the new Emergency support in case of crisis inside the EU

Only two days after the meeting of the Head of States and Governments the Coreper has already agreed with minor changes on the Commission proposal to make use of ECHO funds also inside the EU in case of emergencies or crisis such as the one faced by countries like Greece under the refugee pressure.

The Legal basis of the regulation is art 122 of the TFEU according to which :
1. Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.
2.Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken.

By the same token a specific Budget line has been created. According to Agence Europe the €300 million budget that Euro ECHO will be allocated in 2016 will be used to help Greece meet the pressing humanitarian needs (food, shelter, drinking water, medicines and other basic necessities) of the refugees within its borders. (EDC)

The text of the Regulation is as follows:

COUNCIL REGULATION 

of on the provision of emergency support within the Union

THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 122(1) thereof,
Having regard to the proposal from the European Commission,

Whereas:

(1)          Mutual assistance and support in the face of disasters is both a fundamental expression of the universal value of solidarity between people and a moral imperative, as such disasters may lead to a significant number of people being unable to meet their basic needs, with potential severe adverse effects on their health and lives.

(2)          The impact of both man-made and natural disasters within the Union is increasingly severe. This is linked to a number of factors, such as climate change, but also to other contributing external factors and circumstances which are unfolding in the Union’s neighbourhood. The migration and refugee situation currently affecting the Union is a notable example of a situation where, despite the efforts undertaken by the Union to address the root causes located in third countries, the economic situation of Member States may be directly affected.

(3)          This situation led the European Council, on 19 February 2016, to call upon the Commission to put in place the capacity to provide humanitarian assistance internally, in order to support countries facing large numbers of refugees and migrants.

(4)          Man-made or natural disasters may be of such a scale and impact that they can give rise to severe economic difficulties in one or several Member States. They can also occur in one or several Member States already facing severe economic difficulties for other reasons, with the result of exacerbating and aggravating even further the overall economic situation of the Member States concerned. In either case, the response capacity of the Member States concerned would be adversely affected, and the assistance and support being provided to people in need would, in turn, be negatively affected.

(5)          While the Union is already in a position to grant support of a macro-financial nature to Member States, and to express European solidarity to disaster-stricken regions through the European Union Solidarity Fund (EUSF) established by Council Regulation (EC) No 2012/2002[1], there is currently no appropriate instrument available at Union level to address on a sufficiently predictable and independent basis the humanitarian needs of disaster-stricken people within the Union, such as food assistance, emergency healthcare, shelter, water, sanitation and hygiene, protection and education. Mutual assistance can be offered under the Union Civil Protection Mechanism pursuant to Decision No 1313/2013/EU of the European Parliament and of the Council[2], but the operation of that Mechanism is based on voluntary contributions from Member States. There could also be assistance and support provided through existing Union policy and financing instruments, such as those aimed at establishing an area of freedom, security and justice in the Union. Any such assistance and support would, however, be accessory and ancillary to the pursuit of the principal policy objectives of those instruments and, therefore, be limited in its scope and scale.

(6)          It therefore seems appropriate for the Union to act in a spirit of solidarity to address the basic needs of disaster-stricken people within the Union, and to contribute to reducing the economic impact of those disasters on the Member States concerned.

(7)          Given the similarities in addressing the basic needs of disaster-stricken people within the Union through the provision of emergency support and in providing humanitarian aid to people affected by man-made or natural disasters in third countries, all operations under this Regulation should be conducted in compliance with internationally-agreed humanitarian principles. Those actions constitute measures appropriate to the economic situation of the Member States facing those difficulties and complementing Union action encouraging cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.

(8)          Given the need to act in a spirit of solidarity, the provision of emergency support under this Regulation should be financed by the general budget of the Union, as well as by contributions which may be made by other public or private donors.

(9)          The reimbursement of expenses and award of public procurement contracts and grants under this Regulation should be implemented in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council[3], taking into account the specific nature of emergency support. It is therefore appropriate to provide that grants and public procurement contracts may be awarded directly or indirectly, and that grants may finance up to 100 % of the eligible costs and be awarded with retroactive effect. The Commission should be able to finance emergency support operations of any organisation which, independent of its legal nature, whether private or public, possesses the requisite experience and uses to that effect direct or indirect management, as appropriate.

(10)        Furthermore, it is appropriate to rely on organisations with which the Commission has concluded framework partnership agreements pursuant to Council Regulation (EC) No 1257/96[4], in light of the relevance of the experience acquired by those organisations in providing humanitarian aid in close coordination with the Commission. Wherever possible the involvement of local non-governmental organisations should be sought, via partner organisations with framework partnership agreements, in order to maximise synergies and the efficiency of any emergency support provided under this Regulation.

(11)        The financial interests of the Union should be protected by means of proportionate measures throughout the expenditure cycle, including the prevention, detection and investigation of irregularities, the recovery of funds lost, unduly paid or incorrectly used and, where appropriate, administrative and financial penalties in accordance with Regulation (EU, Euratom) No 966/2012.

(12)        This Regulation should lay down the basis for providing financial support in the event of natural or man-made disasters in respect of which, in a spirit of solidarity, the Union would be better placed than Member States, acting alone and in an uncoordinated manner, to mobilise appropriate levels of financing and use them to implement operations of a potentially life-saving nature in an economic, efficient and effective manner, thereby allowing a more effective action by reason of its scale and complementarity.

(13)        Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(14)        The provision of emergency support under this Regulation should be aptly monitored, relying, where need be, on the most relevant expertise available at Union level. Furthermore, the overall implementation of this Regulation should be evaluated.

(15)        Given the urgency of the support needed, this Regulation should enter into force immediately,

HAS ADOPTED THIS REGULATION:

Article 1 Subject matter and scope

  1. This Regulation lays down the framework within which Union emergency support may be awarded through specific measures appropriate to the economic situation in the event of an ongoing or potential natural or man-made disaster. Such emergency support can only be provided where the exceptional scale and impact of the disaster is such that it gives rises to severe wide-ranging humanitarian consequences in one or more Member States and only in exceptional circumstances where no other instrument available to Member States and to the Union is sufficient.
  2. Emergency support provided under this Regulation shall be in support of, and complementary to, the actions of the affected Member State. To this end, close cooperation and consultation with the affected Member State shall be ensured.

Article 2 Activation of the emergency support

  1. The decision about the activation of the emergency support under this Regulation in case of an ongoing or potential disaster shall be taken by the Council on the basis of a proposal by the Commission, specifying where appropriate the duration of the activation.
  1. The Council shall immediately examine the proposal of the Commission referred to in paragraph 1 and shall decide, in accordance with the urgency of the situation, on the activation of the emergency support.

Article 3 Eligible actions

  1. Emergency support under this Regulation shall provide a needs-based emergency response, complementing the response of the affected Member States, aimed at preserving life, preventing and alleviating human suffering, and maintaining human dignity wherever the need arises as a result of a disaster referred to in Article 1.
  2. Emergency support, as referred to in paragraph 1, may include any of the humanitarian aid actions which would be eligible for Union financing pursuant to Articles 2, 3 and 4 of Regulation (EC) No 1257/96, and may consequently encompass assistance, relief and, where necessary, protection operations to save and preserve life in disasters or in their immediate aftermath. It may also be used to finance any other expenditure directly related to the implementation of emergency support under this Regulation.
  3. Emergency support under this Regulation shall be granted and implemented in compliance with the fundamental humanitarian principles of humanity, neutrality, impartiality and independence.
  1. The actions referred to in paragraph 2 shall be carried out by the Commission or by partner organisations selected by the Commission. The Commission may notably select, as partner organisations, non-governmental organisations, specialised services of the Member States or international agencies and organisations having the requisite expertise. In doing so, the Commission shall maintain a close cooperation with the affected Member State.

Article 4 Types of financial intervention and implementing procedures

  1. The Commission shall implement the Union’s financial support in accordance with Regulation (EU, Euratom) No 966/2012. In particular, Union financing for support actions under this Regulation shall be implemented by means of direct or indirect management in accordance with points (a) and (c), respectively, of Article 58(1) of that Regulation.
  2. Emergency support under this Regulation shall be financed by the general budget of the Union and by contributions which may be made by other public or private donors as external assigned revenue in accordance with Article 21(4) of Regulation (EU, Euratom) No 966/2012.
  1. Union financing for support actions under this Regulation to be implemented by means of direct management may be awarded directly by the Commission without a call for proposals, in accordance with Article 128(1) of Regulation (EU, Euratom) No 966/2012. To that effect, the Commission may enter into framework partnership agreements or rely on existing framework partnership agreements concluded pursuant to Regulation (EC) No 1257/96.
  2. Where the Commission implements emergency support operations through non-governmental organisations, the criteria concerning financial and operational capacity shall be deemed to be satisfied where there is a framework partnership agreement in force between that organisation and the Commission pursuant to Regulation (EC) No 1257/96.

Article 5 Eligible Costs

  1. Union financing may cover any direct costs necessary for the implementation of the eligible actions set out in Article 3, including the purchase, preparation, collection, transport, storage and distribution of goods and services under those actions.
  2. The indirect costs of the partner organisations may also be covered in accordance with Regulation (EU, Euratom) No 966/2012.
  1. Union financing may also cover expenses pertaining to preparatory, monitoring, control, audit and evaluation activities which are required for the management of the emergency support to be provided under this Regulation.
  2. Union financing for emergency support actions under this Regulation may cover up to 100 % of the eligible costs.
  3. Expenditure incurred by a partner organisation before the date of submission of an application for funding may be eligible for Union financing.

Article 6 Complementarity and consistency of Union action

Synergies and complementarity shall be sought with other instruments of the Union, in particular with respect to those instruments under which some form of emergency assistance or support may be offered, such as Regulation (EU) No 661/2014 of the European Parliament and of the Council[5], Decision No 1313/2013/EU, Regulation (EC) No 1257/96, Regulation (EU) No 223/2014 of the European Parliament and of the Council[6], Regulation (EU) No 513/2014 of the European Parliament and of the Council[7], Regulation (EU) No 514/2014 of the European Parliament and of the Council[8], Regulation (EU) No 515/2014 of the European Parliament and of the Council[9] and Regulation (EU) No 516/2014 of the European Parliament and of the Council[10].

Article 7 Protection of the financial interests of the Union

  1. The Commission shall take appropriate measures ensuring that, when actions financed under this Regulation are implemented, the financial interests of the Union are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and dissuasive administrative and financial penalties.
  2. The Commission or its representatives and the Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors, who have received Union funds under this Regulation.
  3. The European Anti-Fraud Office (OLAF) may carry out investigations, including on‑the‑spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013[11] of the European Parliament and of the Council and Council Regulation (Euratom, EC) No 2185/96[12] with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or grant decision or a contract funded under this Regulation.
  1. Without prejudice to paragraphs 1, 2 and 3, contracts and grant agreements as well as agreements with international organisations and Member States’ specialised services, resulting from the implementation of this Regulation shall contain provisions expressly empowering the Commission, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

Article 8 Monitoring and evaluation

  1. Actions receiving financial support under this Regulation shall be monitored regularly. At the latest 12 months after the activation of the emergency support for a specific situation in accordance with Article 2, the Commission shall present a report to the Council and, where appropriate, proposals to terminate it.
  2. By … [OJ: insert date three years after the date of entry into force of this Regulation], the Commission shall submit an evaluation of the operation of this Regulation to the Council, together with suggestions for the future of this Regulation and, where appropriate, proposals to amend or terminate it.

Article 9 Entry into Force and activation

  1. This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
  1. The Council hereby decides to activate the emergency support under this Regulation as of the day of its entry into force for the current influx of refugees and migrants into the Union, for a period of three years.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

NOTES

[1]           Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund (OJ L 311, 14.11.2002, p. 3).
[2]           Decision No 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism (OJ L 347, 20.12.2013, p. 924).
[3]           Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).
[4]           Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid (OJ L 163, 2.7.1996, p. 1).
[5]           Regulation (EU) No 661/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Regulation (EC) No 2012/2002 establishing the European Union Solidarity Fund (OJ L 189, 27.6.2014, p. 143).
[6]           Regulation (EU) No 223/2014 of the European Parliament and of the Council of 11 March 2014 on the Fund for European Aid to the Most Deprived (OJ L 72, 12.3.2014, p. 1).
[7]           Regulation (EU) No 513/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, preventing and combating crime, and crisis management and repealing Council Decision 2007/125/JHA (OJ L 150, 20.5.2014, p. 93).
[8]           Regulation (EU) No 514/2014 of the European Parliament and of the Council of 16 April 2014 laying down general provisions on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ L 150, 20.5.2014, p. 112).
[9]           Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC (OJ L 150, 20.5.2014, p. 143).
[10]         Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (OJ L 150, 20.5.2014, p. 168).
[11]         Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
[12]         Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on‑the‑spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

Counter-terrorism: The EU and its Member States must respect and protect human rights and the rule of law

JOINT CIVIL SOCIETY STATEMENT (*) Brussels, 1st March 2016.

The 2015 terrorist attacks in Paris and elsewhere – and the assertion by States that there is an elevated terrorist threat in the European Union (EU) – have led to a new set of counter-terrorism measures at both EU and national levels. These terrorist attacks are heinous criminal acts which undermine human rights. International human rights law itself requires that states must take appropriate measures to prevent and respond to acts of terrorism, in order to ensure the security and safety of the people in their territories. The undersigned organisations recall that counter-terrorism measures must always comply with the rule of law and human rights obligations under European Union and international law. Effective counter-terrorism measures and the protection of human rights are not conflicting but are aimed at overlapping, complementary and mutually reinforcing goals. In practice, widespread violations of human rights while countering terrorism have proven to be counterproductive.

The undersigned organisations acknowledge that states are facing substantial threats to the security of their populations that require effective action. However, the extent of restrictions on human rights that result or could result from adopted or contemplated security measures is significant. Transparency, information and meaningful participation of civil society are crucial to avoid excessive or other arbitrary restrictions on human rights as a result of counter-terrorism laws and policies.

An overarching concern is the fast-track procedures used by EU institutions and EU Member States authorities to adopt counter-terrorism measures, for instance in the Draft Directive on Combating Terrorism. This reduces the space for meaningful civil society participation and transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, which is contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allow for proper or, indeed, any impact assessments, as foreseen by the EU Better Regulation Guidelines and Better Regulation tool 24.

The shrinking space for civil society is a concerning reality not only outside the EU, but also within its own borders.

The undersigned organisations urge the EU and Member States to respect, protect and fulfil human rights and the rule of law:

The right to be free from torture and cruel, inhuman or degrading treatment or punishment.

 All States must comply with the absolute prohibition of torture and ill-treatment and take effective measures to prevent any acts of torture or cruel, inhuman or degrading treatment or punishment. They must ensure that allegations of such treatment are effectively and independently investigated and the perpetrators brought to justice, and that victims have access to effective remedies and reparations, including rehabilitation. States must ensure that statements and other information obtained through torture and ill-treatment, including information obtained abroad, are not invoked as evidence in any proceedings, except against a person accused of torture.1 This obligation includes a responsibility not to use or share torture-tainted information obtained in other States and should also cover EU agencies with cooperation agreements with third countries, such as Europol.

As a guarantee against ill-treatment within EU Member States, international fair trial rights should be respected, suspects arrested for terrorism offences should be notified of their rights effectively in accordance with international human rights law and Directive 2012/13/EU and access to a lawyer should be ensured in accordance with Directive 2013/48/EU. The important right of an arrested person to be brought promptly before a judicial authority upon arrest, as set out Article 5 European Convention on Human Rights (ECHR) and Article 9 International Covenant on Civil and Political Rights (ICCPR), that amongst other things is a safeguard against prohibited ill-treatment, should also be clearly enshrined in EU law.

No return to face human rights violations.

All removals and expulsions of persons must respect the principle of non-refoulement, meaning that nobody must be returned to a country where there are substantial grounds for believing that he/she would be in danger of being subjected to torture, ill-treatment or other serious violations of human rights. 2 This principle must hold true for people convicted of terrorism offences, or who are suspected of terrorism-related activity. Diplomatic assurances, which are typically not legally enforceable and are inherently unreliable, should not be considered as sufficient protection against torture, ill-treatment, unfair trial or arbitrary detention following removal.

The right to liberty and security of the person.

Any person arrested or deprived of their liberty, including by administrative detention, must have prompt access to judicial review of detention, and regular judicial review thereafter.

All detainees at all times have the right to challenge the lawfulness of their detention through judicial proceedings. They have a right to prompt and regular access to a lawyer, and the right to inform their family of their detention. Deprivation of liberty is permissible only on the grounds envisaged by Article 5(1) ECHR.

Where the authorities possess credible facts or information giving rise to a reasonable suspicion that a person has committed an offence, they may arrest that person on suspicion of committing an offence in accordance with Article 5(1)(c) ECHR and ensure all attendant guarantees, including the right to an adversarial hearing before a court enabling the suspect to contest the reasonableness of the suspicion and ensuring their access to materials necessary for challenging detention effectively.

Proposals for administrative forms of detention based on suspicion against the person but which circumvent the protections of criminal procedure are in principle unlawful, at least in so far as the state concerned has not formally derogated from international human rights obligations, including Article 5 ECHR due to a state of emergency that threatens the life of the nation.

Detention must even then be subject to strict criteria of necessity and proportionality, be subject to judicial review and allow for access to a lawyer. Whatever the basis for detention, solitary confinement must only be imposed in exceptional cases as a last resort, for as short a time as possible and subject to independent review, only pursuant to the authorisation by a competent authority and must never be prolonged. It can only be applied in conditions that ensure the detainees rights to health, due process and protection against ill-treatment will not be violated. Effective access to legal counsel and consular services should be ensured at all times.

Right to fair trial.

Individuals suspected of terrorism-related offences should be investigated, charged and tried before independent and impartial courts within the ordinary criminal justice system. Proceedings relating to terrorism offences sometimes involve evidence obtained from overseas operations, surveillance, intelligence and military agencies, which may be relied upon to demonstrate aspects of substantive offence definitions such as the individual’s intention and their concrete participation in terrorist offences; they may also be subject to particular media scrutiny.

Such proceedings must respect international law and standards on the right to a fair trial, as protected by Article 14 ICCPR, Article 6 ECHR and supported by EU Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings, and further Directives adopted under Article 82(2) TFEU including on the presumption of innocence, safeguards for children and legal aid.

These measures foresee no possibility of general derogation in times of emergency, and any limitations on the rights concerned must therefore be in accordance with the law, confined to what is necessary and proportionate to the legitimate aim pursued, subject to judicial oversight and must not undermine the overall fairness of the trial.

Outside the context of criminal proceedings (e.g. asset freezing, security measures imposing restrictions on individuals or organisations), the right to be heard and rights of defence should also be fully respected, in particular by enabling the person concerned to comment effectively upon the evidence which serves as the basis for the decision against them.

Definition of terrorism.

International human rights bodies have repeatedly expressed their concern that the potentially vague and over-broad scope of the definitions of terrorism in domestic law in certain jurisdictions may contravene the principle of legality and could lead to violations of human rights. Similar concerns apply to the definition of terrorism under EU law.

Member States and EU institutions should apply clear definitions of what constitutes a terrorist offence or ancillary offences of terrorism within national criminal law, to protect against arbitrary or discriminatory application.

Such definitions should ensure that concrete individual participation in intended or actual acts of terrorism is required for the offence to be committed. “Receiving training for terrorism” should be confined to receiving such training wilfully. Moreover, it is essential that offences of “receiving training for terrorism” be subject to establishing specific intent of carrying out, or contributing to the commission of the principal offence as a result of the training. In the absence of such intent, there is a risk of criminalising conduct, which lacks a sufficient proximate causal link with the main criminal offence.

It should be clear that these new criminal law provisions do not apply to conduct governed by international humanitarian law. States should give priority to fulfilling their existing international legal obligations to investigate and prosecute war crimes, crimes against humanity and other crimes under international law.

The right to non-discrimination.

Counter-terrorism policies have had a disproportionate impact on certain populations, including ethnic or religious minorities, including Muslims, people of African and Asian descent, migrants, or people perceived to be from these groups. Evidence shows the disproportionate effects on Muslim communities of the post 9/11 practices, such as racial profiling. 3

Evidence also shows that more recent European States’ policies and practices have disproportionately targeted Muslims and people perceived to be Muslim.

Ethnic profiling has been reported as on the rise in several EU member states. Intelligence services, police authorities and justice systems should be equipped to ensure fair and efficient policing and equal access to justice.

Discrimination undermines social cohesion and society as a whole, and can reinforce radicalisation and violence. Equality and non-discrimination   standards   must   be   complemented   by   specific   policy   strategies   by   Member States to address all forms of racism, including anti-Semitism, Afrophobia and Islamophobia. We welcome commitments made by the European Commission at the European Commission Colloquium on fundamental rights in October 2015, but encourage concrete follow-up in terms of obligations for Member States.

Freedom of expression and peaceful assembly.

Freedom of expression is often curtailed in states proposals to counter radicalisation or counter-terrorism, for instance in measures criminalising glorification of or apology for terrorism.

The proposed Directive on combating terrorism prohibits a person from threatening to commit certain acts or to aid, abet or incite someone to do so,4 even without any direct link to specific terrorist offences or activities in some cases.5  The Directive should include a provision on freedom of expression, as in the Council’s 28 November 2008 Framework Decision on combating terrorism.

Further, online surveillance and limits to freedom of expression should, in line with the primary law of the EU and international law, be provided in by law, be proportionate, necessary and subject to data protection law. It would for instance be important to ensure that such restrictions are targeted and subject to judicial pre-authorisation with a requirement for reasonable suspicion. Internet companies should not be pressured into censoring online content, for example by the threat of criminal sanctions, nor should they be forced to cooperate to undermine encryption, which would actually damage security online.

Greater efforts should also be made to combat online hate speech targeting groups at risk of discrimination, with more scrutiny to ensure such efforts meet human rights criteria. Counter-terrorism measures restricting freedom of assembly should be foreseeable and transparent, limited to what is necessary and proportionate in pursuit of a legitimate aim, based on corroborated evidence, have time limits and be subject to independent or judicial review. Blanket bans on demonstrations and other peaceful assemblies should be avoided.

The right to privacy.

The proposed Directive on the long-term storage and use of Passenger Name Record (PNR) for the purpose of profiling individuals as possible serious criminals or terrorists raises serious human rights concerns. These concerns include an excessive data retention period, lack of evidence showing that these measures are effective (in fact, the collection of data on an indiscriminate and mass basis has not been shown as necessary for preventing terrorist attacks) and the high risk of discriminatory use of the data depending on the way algorithms or data analyses indicators are designed.

The undersigned organisations are further concerned by indiscriminate mass surveillance practices carried-out by some Member States. In addition, PNR and other untargeted data mining and surveillances practices can lead to discriminatory behaviour and the prohibited processing of data revealing race, ethnic origin or religion through the use of proxies.

Both in this context and in context of the wider demands from law enforcement agencies for Internet companies to arbitrarily infringe on human rights, special attention needs to be brought to the development and use of algorithms for crime-fighting purposes.

Human rights of asylum seekers and migrants.

Migration is not a crime. States must refrain from policies and rhetoric that associate asylum-seekers and migrants with the threat of terrorism, and must not use counter-terrorism and counter-radicalisation measures as an excuse for curbing commitments to migration and international protection.

Additional “targeted” border checks, proposed in the context of the reform of Schengen, are problematic because they are based on travel and personal characteristics of individuals, and run the risk of ethnic profiling. Recent proposals to revise the mandate of EU border surveillance agency Frontex, and extend its competences, strengthen the security-oriented approach of European migration policy at the expense of migrants’ human rights.

These amendments must take into account the human rights obligations of Member States and the EU and should be accompanied by adequate safeguards for the respect of the human rights of EU citizens, migrants, asylum-seekers and refugees.

Without safeguards, monitoring and training for the new EU border and coastal guards and frontline officers, risks of human rights violations are higher. Efforts should be made to restore ethnic and religious minorities’ trust in law-enforcement authorities and promote community policing, using existing best practices such as through the hiring and training of policemen/women to engaging highly diverse communities in full respect of their cultural, religious and ethnic backgrounds. Effective policing relies on trust within communities.

Freedom of movement.

Criminalising travel for terrorism, as in the proposed Directive on Combating Terrorism, has a direct impact on freedom of movement. The right to leave a country, including one’s own, should only be restricted for specific and legitimate reasons and by proportionate means and not on general assumptions. The right to re-enter your own country must never be restricted arbitrarily or disproportionately.

Proposals which would have the effect of banning citizens from re-entering their countries should not be based on general assumptions. The potential withdrawal of an individual’s ID or passport based on suspicion of radicalisation and without a judicial decision based on an explicit and reasonable set of criteria set out in the law is law is incompatible with the right to freedom of movement. The withdrawal of EU citizenship for persons convicted of terrorism-related offences could lead to statelessness and additional arbitrary penalties.

Freedom of religion or belief.

Article 18 of the ICCPR and Article 9 ECHR do not permit any limitation to freedom to hold any thought, conscience and religion or the freedom to have or to adopt a religion or belief of one’s choice. Mosques should not be closed based on their alleged radical affiliation, without clear elements pointing to the establishment of responsibility for the commission of criminal acts of any of the individuals who owned or administered them.

Proposals to separate ‘radical’ prisoners from the rest of detainees would seem difficult to implement without unjustifiably infringing on freedom of religion as definitions of “radical” are vague, and no Member State has formulated a reliable and non-discriminatory list of indicators of radicalisation.

The proposal in the November 2015 Council conclusions to “develop risk assessment tools and tools to detect early signs of radicalisation in prisons” should ensure safeguards to prevent arbitrary profiling and protect freedom of religion and non-discrimination among prisoners. Prisons need more education and other programmes and resources to fully play their rehabilitation and reintegration role. For some offenders, alternative measures to detention should be explored as a way to reduce overcrowding in prisons, reduce repeat offender rates as well as prevent further radicalisation and encourage re-integration in society. The administration must organise meetings with former detainees who have managed their integration into society.

Human rights education and social inclusion.

The reaffirmation of “EU values” in the education systems fall short of addressing social exclusion and human rights violations, and therefore do not offer a real counter-narrative to radicalisation. Human rights and the rule of law are universal values, with their basis in the Universal Declaration of Human Rights, and are not exclusive to any one region or culture. Comprehensive human rights education programmes should be available in schools, including on digital rights, equality and non-discrimination, European history and minorities’ contributions to Europe. Long-term social investment in education, housing, employment, health and social services are crucial to stop the massive disenfranchisement of sizeable parts of the population.

 Counter-terrorism and human rights in external affairs.

The EU should implement the Operational Human Rights Guidance for EU external cooperation actions addressing “Terrorism, Organised Crime and Cybersecurity: Integrating the Rights-Based Approach”.

As committed to in the EU strategic framework on human rights and democracy, the EU should ensure that human rights and rule of law are fully respected in the implementation of its activities, projects and agreements and are at the centre of all EU agencies, EU programmes, legislation, policies and mechanisms.

Cooperation with third countries requires a human rights risk assessment, and the setting-up of monitoring-protection-reporting mechanisms to ensure the full protection of human rights. Countering terrorism should go hand in hand with activities ensuring the full protection of human rights, including the rights of Human Rights Defenders and with concrete measures protecting the space for civil society in regard to counter-terrorism and security issues. Failure to take such measures has contributed to increases in radicalisation and impunity.

NOTES

1.See Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Guidelines to EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment, General Affairs Council of 18 April 2008.
2 See Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33 of the 1951 Convention Relating to the Status of Refugees and article 33 of the 1951 Convention Relating to the Status of Refugees.
3   From   the   European   Network   Against   Racism   (ENAR)   Shadow   reports,   Open   Society   Foundations   (OSF),   Amnesty International and the European Union Agency for Fundamental Rights (FRA).
4 Articles 3(2)(i), 8 to 13 and 16 of the draft Directive on combating terrorism.
5. Article 15 of the draft Directive.

 

(*) Signed:

  • European Network Against Racism (ENAR)
  • Amnesty International
  • International Federation of Human Rights (FIDH)
  • International Commission of Jurists (ICJ)
  • Open Society European Policy Institute
  • World Organisation Against Torture (OMCT)
  • Fair Trials
  • European Digital Rights (EDRi)
  • Forum of European Muslim Youth and Student Organisations (FEMYSO)
  • International Federation of Action by Christians for the Abolition of Torture (FIACAT)
  • International Rehabilitation Council for Torture Victims (IRCT)
  • Association for the Prevention of Torture (APT)
  • European Association for the Defense of Human Rights (AEDH)

Protecting civilians in armed conflict International framework and challenges

EUROPEAN PARLIAMENT RESEARCH SERVICE BRIEFING (January 2016)

Author: Carmen-Cristina Cîrlig

SUMMARY

In today’s armed conflicts, whether international or intra-state, the vast majority of casualties are now civilians. Increasingly, civilians are victims of deliberate attacks and other serious violations by parties to a conflict – both states and non-state armed groups, despite the existence of strict legal rules intended to spare civilians from the effects of hostilities: the principles of international humanitarian law, of international human rights law and refugee law.
The lack of compliance with these norms, as well as the United Nations Security Council’s inability to take action to protect civilians in some specific cases, reflects the key concerns regarding the protection of civilians affected by armed conflicts worldwide. Moreover, specific protection concerns relate to the situation of women, children and displaced persons.
Besides this international legal framework, another related concept has garnered significant support internationally in the past decade: the Responsibility to Protect (R2P), meant to apply only in cases of atrocity crimes. However, R2P remains controversial, given the challenge of adequate implementation, particularly with regard to its military intervention aspects.
Notwithstanding the many challenges with regard to protecting civilians in armed conflict, the European Union is a strong promoter of international humanitarian principles and of R2P, and other protection-related issues are consistently among its priorities.

Armed Conflicts

 

Trends in armed conflicts and impact on civilians…

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L’ELSJ à l’heure de l’état d’urgence : un effet collatéral du « syndrome shadok » de la lutte antiterroriste française ?

ORIGINAL PUBLISHED ON CDRE PAGE  (2 FÉVRIER 2016)

by Pierre Berthelet, CDRE

« Il vaut mieux pomper d’arrache-pied même s’il ne se passe rien que risquer qu’il se passe quelque chose de pire en ne pompant pas ». La devise des Shadoks n’aura nullement échappé à l’observateur du droit français de la lutte antiterroriste au moment où le gouvernement prolonge la loi sur l’état d’urgence, validée par le Conseil d’État dans une ordonnance du 27 janvier 2016. La France, en proie à une pulsion législative si bien évoquée dans l’ouvrage Un droit pénal postmoderne ?, empile les textes juridiques destinés à faire face à la menace terroriste. La France semble être atteinte du « syndrome Shadok » caractérisé par une inflation législative constante.

Ce « syndrome Shadok » évoqué par Yves Trintignon de l’Université du Québec met en évidence le fait que le gouvernement français, confronté aux attaques terroristes de janvier et de novembre 2015, s’est empressé de renforcer les capacités des services de renseignement sans réellement s’interroger sur les difficultés rencontrées en matière d’organisation, sur les défaillances de leurs méthodes, ou encore sur les lacunes de leurs pratiques opérationnelles. Pis, il aggrave la situation en répondant promptement à la demande de ces services, et à l’inquiétude de l’opinion publique, sans véritablement faire preuve de distanciation à l’égard des effets pervers à plus long terme.

 

Une telle vision à court-termiste consistant à « pomper » sans relâche, c’est-à-dire à renforcer constamment le dispositif antiterroriste, est constatée à l’échelon national, mais aussi à l’échelon européen. D’emblée, la construction européenne dans ce domaine connaît des progrès sensibles. Ces avancées, observables concernant particulièrement l’ELSJ, s’expliquent notamment par l’implication de la France dans le processus décisionnel, désireuse que l’Union soit pleinement associée à la lutte qu’elle mène (1).

 

Cependant, à y regarder de près, la construction européenne risque d’être davantage victime que bénéficiaire de l’engagement de la France dans l’intégration européenne. En effet, son implication est avant tout dictée par une logique en vertu de laquelle le gouvernement entend obtenir un crédit politique à travers une réaffirmation de son autorité. L’État cherche à se légitimer à travers les lois qu’il prend, peu importe d’ailleurs leur efficacité. Il est d’ailleurs à noter que la France réclame une plus grande implication de l’Union dans la lutte antiterroriste, mais elle se garde bien de demander une évaluation globale de l’efficacité des politiques menées par les différents États membres.

 

Le « syndrôme Shadok » de la lutte antiterroriste française, qui consiste à pomper toujours plus même si cela ne sert à rien, a un impact néfaste sur l’édification de l’ELSJ à long terme (2).

 

Toute tentative de vouloir ralentir cette course effrénée est susceptible de constituer un obstacle inadmissible à l’égard d’un État membre désireux de se défendre face à une menace d’une gravité extrême. Qui plus est, les valeurs sur lesquelles l’Union est fondée, la préservation de l’État de droit et le respect des droits de l’homme pourraient faire les frais d’une telle course aveugle. On voit dès lors l’importance du juge européen, comme rempart face au cercle vicieux sécuritaire traduit en langage shadok par « je pompe donc je suis ».

 

  1. Le rôle moteur dans la lutte antiterroriste d’une France aux allures pro-européenne

 

La France apparaît comme l’aiguillon, désireuse de progresser dans l’intégration européenne, et ce, pour ce qui est de l’ELSJ. Un document du Conseil indique ainsi que la délégation française souhaite élargir le champ de la proposition de directive présentée par la Commission européenne le 2 décembre 2012.

Pour mémoire, ce texte, remplaçant la décision-cadre 2002/475/JAI du Conseil relative à la lutte contre le terrorisme, entend harmoniser la législation nationale concernant l’incrimination des « combattants étrangers », de même que l’aide apportée à la sortie du territoire. La décision-cadre a fait l’objet d’une modification en 2008 pour rendre punissable la provocation publique à commettre une infraction terroriste, ainsi que la diffusion sur Internet de la propagande terroriste.

De son côté, la France estime qu’il convient d’aller au-delà de cette actualisation de la législation européenne au regard des textes internationaux ayant trait à ce phénomène des « combattants étrangers » (la résolution du Conseil de sécurité des Nations unies (RCSNU) 2178 (2014)) et le protocole additionnel à la Convention du Conseil de l’Europe pour la prévention du terrorisme de mai 2015).

Elle considère notamment qu’il importe de rendre punissable dans tous les États membres le trafic d’œuvres d’art en provenance de zones sous contrôle terroriste et de supprimer les pages internet incitant au terrorisme ou d’en bloquer l’accès.

Les ajouts de la France dans la proposition de directive s’inscrivent dans un contexte où ces questions font l’objet d’une attention particulière en droit interne.

Ainsi, concernant le trafic d’œuvres d’art, la répression du commerce illicite de biens culturels figure dans le projet de loi contre le crime organisé et le terrorisme, qui doit être présenté courant février 2016.

Pour ce qui est de la suppression des pages internet faisant l’apologie du terrorisme, le Sénat avait adopté le 1er avril 2015 une résolution européenne réclamant l’extension des compétences du Centre européen de lutte contre la cybercriminalité (EC3) en lui donnant la possibilité de supprimer des contenus terroristes ou extrémistes.

Peu avant, le 5 février 2015, un décret a été adopté fixant les modalités permettant aux internautes d’avoir accès à des pages web faisant cette apologie.

La force de proposition de la France concernant ce projet de directive est le reflet d’une volonté politique affichée concernant l’ELSJ : dans une déclaration après le Conseil JAI à Amsterdam du 25 janvier 2016, le ministre de l’Intérieur, Bernard Cazeneuve, fixe les demandes françaises, entendues comme des priorités « essentielles » figurant dans un agenda qui « n’est pas négociable ». Il énumère également les mesures sur lesquelles la France a obtenu satisfaction, en prenant le soin d’ajouter que bon nombre de ces mesures ont été initiées sous son impulsion : la directive PNR, la modification de l’article 7-2 du code frontières Schengen visant à instaurer des contrôles approfondis sur les ressortissants européens quittant l’espace Schengen, ou encore la révision de la directive de 1991 relative au contrôle des armes à feu.

 

  1. La stratégie de fuite en avant sécuritaire d’une France tentée par le repli national

 

La déclaration du ministre de l’Intérieur à l’issue du Conseil JAI du 25 janvier 2016 démontre l’intention de la France de continuer « son travail de persuasion » avec « beaucoup de volontarisme », pour reprendre les termes du texte. Elle fait office également de satisfecit, à la fois au sujet de l’efficacité de l’implication de la France dans la sphère institutionnelle et concernant l’action de l’Union européenne menée sous sa houlette, en matière de lutte antiterroriste.

 

La France s’est engagée depuis de nombreuses années dans une logique de renforcement continuel de l’arsenal répressif au nom de ce que le président de la République a qualifié de « guerre contre le terrorisme ». La fuite en avant sécuritaire se traduit par l’adoption de nombreux textes en 2014 et en 2015 : plan d’avril 2014 contre la radicalisation violente et les filières terroristes, loi du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme et décrets d’application du 14 janvier 2015 destinés à mettre en place l’interdiction administrative de sortie du territoire des ressortissants français, décret précité du 5 février 2015, décret du 4 mars 2015 relatif au déréférencement des sites, plan d’action du 18 mars 2015 pour lutter contre le financement du terrorisme, loi du 24 juin 2015 sur le renseignement et ses multiples décrets d’application, et décret du 14 novembre 2015 instaurant le régime de l’état d’urgence, prorogé par la loi du 20 novembre 2015.

 

D’autres projets sont en cours : projet de loi précité contre le crime organisé et le terrorisme, proposition de loi relative à la sécurité dans les transports, projet de loi constitutionnelle « de protection de la nation » comprenant deux volets, à savoir la déchéance de la nationalité d’un binational devenu français et l’inscription dans la Constitution des conditions de déclenchement de l’état d’urgence.

 

Cette fuite en avant est inquiétante, car s’il est possible de comprendre la stratégie de la France dans une perspective purement nationale, notamment à l’aune des manœuvres déployées par le gouvernement à l’égard du Front national, il est aussi possible d’inscrire le renforcement de l’arsenal répressif dans un contexte de dérive autoritaire que connaissent bon nombre de gouvernements européens, la Pologne au premier chef, vis-à-vis de laquelle la Commission a engagé une procédure de dialogue sur la base de l’article 7.1 TUE.

 

Une telle fuite en avant se traduit, sur le plan européen, par davantage de fermeté de la part de la France : fermeté vis-à-vis d’un Parlement européen réticent à adopter la directive PNR, fermeté à l’égard des délégations nationales enclines à tergiverser au Conseil sur les propositions d’actes en instance d’adoption, fermeté à l’encontre de la Commission désireuse de vérifier la conformité de la décision française de rétablir les contrôles aux frontières intérieures.

 

L’ultimatum lancé à celle-ci par le gouvernement français concernant le rétablissement de ces contrôles en vertu de l’art. 25 du Code Frontières Schengen, aussi longtemps que perdurerait la menace terroriste, est significatif de sa volonté d’afficher, sur tous les fronts, une détermination sans faille. Or, lerétablissement temporaire prolongé en dehors des délais prévus par le Code pose problème du point de vue de la légalité européenne, en particulier au regard des art. 23, 23bis et 25 du code.

L’attitude de la France consistant à faire preuve de fermeté tous azimuts lui permet de faire illusion sur le plan politique. Celle-ci se pare des atours d’une nation leader de la construction européenne pour mieux dissimuler les tentations de repli national. En effet, les efforts menés pour se trouver à la pointe de la lutte antiterroriste masquent la prévalence des intérêts nationaux érigés, en matière sécuritaire, au rang de principes absolus, insusceptibles de limitation.

 

D’ailleurs, pour s’en convaincre, il suffit de constater que, quel que soit le gouvernement, de droite ou de gauche, la France n’hésite pas à remettre en cause publiquement l’acquis de Schengen si celui-ci lui porte préjudice. Une telle attitude se révèle problématique d’un point de vue politique, car elle menace de détricoter cet acquis, faisant, par la même occasion, le jeu de certains gouvernements situés à l’Est de l’Europe.

 

Une telle attitude, prompte par ailleurs à désigner Schengen comme bouc émissaire, et à pointer les défaillances de l’ELSJ, se révèle problématique d’un point de vue juridique, car le droit français adopté dans le contexte de la lutte antiterroriste pose la délicate question de sa conformité du point de vue du droit européen. Ainsi, une France sous état d’urgence prolongé aurait-elle pu adhérer à l’Union européenne conformément aux critères insérés aux art. 6 et 49 TUE ? De manière générale, la législation française est-elle conforme à l’art. 2 TUE ainsi qu’aux dispositions de la Charte européenne des droits fondamentaux ?

 

La question est d’autant plus pertinente que le forcing français à l’égard de la directive PNR pourrait conduire à une annulation de ladite directive et ce, au regard de la jurisprudence Digital Rights. À ce propos, les juges européens se montrent sévères à l’égard de la dérive sécuritaire observée dans les États membres.

 

Prenant appui sur cette jurisprudence Digital Rights, la Cour européenne des droits de l’Homme, dans un arrêt du 12 janvier 2016, Szabo et Vissy c. Hongrie (voir l’analyse de Sylvie Peyrou), s’est montrée très ferme à l’égard des mesures nationales prises dans le cadre de la lutte contre le terrorisme, en l’occurrence les opérations secrètes de surveillance antiterroriste.

 

Le rôle du juge européen n’a jamais été aussi important, non seulement comme défenseur du droit, mais aussi comme gardien des valeurs européennes. Il s’érige comme l’ultime recours face à cette fuite en avant sécuritaire préoccupante pour l’Europe et pour la France. Les mots de la Commission nationale consultative des droits de l’homme (CNCDH) dans sa déclaration du 16 janvier 2015 sur l’état d’urgence et ses suites sonnent particulièrement juste : « la France ne doit pas, sous l’emprise de la sidération, sacrifier ses valeurs, au contraire, elle doit renforcer la démocratie ».