The Approach of the EU and the US to Combating Terrorism in Relation to Human Rights

II. US and counter-terrorism

When the former president George W. Bush officially left office in January and when ordinary people and especially critics looked back at the eight years of his presidency, their vision was dominated by 9/11, Afghanistan and Iraq. Especially the latter occupy a prioritized position on the policy agenda until today. The aim of this chapter is to review the response of the US to the 9/11 attacks, in what resulted to be a long, perhaps never-ending struggle to eliminate terrorism. The author is hopeful that this chapter as well as later chapters (chapter IV and V) in particular will explain why the Bush administration provided critics with so much ammunition.

2.1 The US response to 9/11³⁷

The United States president at the time, George W. Bush, who was inaugurated on January 20^th 2001, found out that ‘America was under attack³⁸’ just a little after the second plane hit the WTC. The speech³⁹ with which former President Bush addressed the nation that evening gave some insight into the course of action that America would resort to in response to the attack on their nation. To some extent, Bush’s stance was reinforced by the United Nations Security Council Resolution 1368, adopted on September 12^th, which condemned the attacks and pledged ‘readiness to take all necessary steps to respond to the attacks of 11 September and to combat all forms of terrorism’ as well as it called on all states to work together to bring those in charge of the attacks to justice.⁴⁰ On September 14^th, a national state of emergency was declared.⁴¹

One of the first long-term impacts that 9/11 had was a considerable re-shuffle of the US administration in general and its executive branch in particular. Before 9/11, the Bush administration did not place much priority on foreign affairs and internal security⁴⁴but in the immediate aftermath; these two policy areas were quite understandably present in every conversation in the White House, Congress and beyond. It was there, in the two chambers of the Congress, where the idea of merging the numerous federal agencies, which had counter-terrorism in their line of work, was born in the fall of 2001 and was signed into law less than a month after 9/11, on October 8^th. The newly established Office of Homeland Security, which fell under the Executive office of the President, was charged with the objectives of, as its name suggests, ensuring the security of the US and its people as well as preventing the occurrence of another (terrorist) attack. At least partially, these objectives were to be met by the implementation of a strategy which the administration would develop in the following months. Over time however, it became apparent that the scope of these objectives was too large for a single office. Dubbed the ‘largest reorganization of the federal government since World War II’⁴⁵ and described as ‘the most comprehensive reorganizations of the executive branch’⁴⁶, it was decided and signed into law in November 2002 that a cabinet-level Homeland Security Department was to be created.⁴⁷ The objectives of this department which simultaneously represented the objectives of the war on terror were codified in the National Security Strategy of the United States of America⁴⁸ and the National Strategy for Combating Terrorism.⁴⁹ ‘Defeat(ing) terrorists and their organizations, Deny(ing) sponsorship, support and sanctuary to terrorists, diminish(ing) the underlying conditions that terrorists seek to exploit and defend(ing) US citizens and interests at home and abroad’⁵⁰ are the four main objectives, described generally in the National Strategy for Combating Terrorism. The Bush administration reiterated its black and white neutrality-absent policy by stating that ‘the United States will make no concessions to terrorist demands and strike no deals with them. We make no distinction between terrorists and those who knowingly harbour them or provide aid to them’⁵¹. The uncertainty of the whole notion of the war on terrorism was clearly displayed by stating that ‘it will be fought on many fronts against a particularly elusive enemy over an extended period of time’.⁵² It is hard to deduce whether it was clear to the Bush administration that ‘an extended period of time’ stretched to the date on which these pages are being written.

With the mission of overthrowing the Taliban and destroying al Qaeda, the US-led Operation Enduring Freedom (OEF) was initiated in the early hours of October 7^th, limitedly together with the UK, the Northern Alliance⁶⁰ and Pashtun anti-Taliban forces, the latter two providing ground forces.⁶¹ During the course of the aerial attacks, an Arab TV station aired a statement made by bin Laden, where he praised the 9/11 attacks and identified the West as hypocrites.⁶² One of the immediate successes of OEF was the expression of immense military power, unmatched by anyone in the world.⁶³

The heavy fighting, which continually extended over several weeks, ultimately resulted in the fall of Kabul as the capital of Taliban rule on November 13^th and to the collapse of the Taliban hold on the country as a whole by the end of November. An interim government was set up by an agreement reached in Bonn at the beginning of December⁶⁴, whereby an International Security Assistance Force (ISAF) was called upon to supervise the stability of the provisional government and Afghanistan. This assistance force was officially dispatched by United Nations Security Council Resolution 1386⁶⁵, under UK leadership and taken over indefinitely⁶⁶ by NATO in March 2003.

However it must be noted that US troops did not suddenly withdraw from Afghanistan, as we now know that the fighting is far from over. It is true that the Taliban was severely weakened but this should not be overestimated, the Taliban was not completely destroyed as Bush may have envisioned. In March 2003 more raids took place

Quite ironically, the choice of name for this extensive operation is quite applicable as it is still enduring eight years later and perhaps a more appropriate name would have been Operation Enduring War. Meanwhile the Taliban has recuperated from the invasion and is making the efforts at peace building in Afghanistan ever more difficult.

2.3 Iraq

The fear that terrorists would get their hands on weapons of mass destruction (WMD) was a concern that was not created by 9/11. Arguably the first real wakeup call came in 1995 when the Aum Shinrikyo cult perpetrated terrorist acts using sarin gas on a crowded subway line in Japan.⁶⁸ It was this event that made the world realise the surprising easiness of individuals getting access and obtaining chemical weapons, of which a small amount can have devastating consequences. Perhaps even more shocking was the fact that this was possible without state sponsorship. This certainly became a more alarming thought in the US ,more intense than ever before, when letters containing traces of anthrax were sent to several politicians and media figures just days after 9/11. Nacos points out that this was a ‘chilling reminder that a far more devastating version of bioterrorism by one individual or a small group, whether sponsored by states or acting independently, was a real possibility’.⁶⁹

The US had its share of history with Saddam Hussein’s Iraq, particularly during the 1990s in the Gulf war, when George W.H. Bush was in charge of the United States. A decade later, his son’s administration was claiming links between Al Qaeda and Baghdad and between their top men Osama bin Laden and Saddam Hussein in particular. In addition, it was argued that Iraq had the capability to develop and was in fact developing biological and chemical weapons. The equation which came out of the alleged situation was thus Al Qaeda has links with Iraq, Al Qaeda is a terrorist network and Iraq has WMD capability therefore Al Qaeda is or in the near future will be able to acquire these weapons. Knopf points out that some similarities did indeed exist between Saddam and bin Laden; they are both Arab, Muslim and have influence in the Middle East⁷⁰ but these trivial similarities are overshadowed by major differences such as the fact that bin Laden leads a territory-less terrorist network while Saddam leads a territory-bound state. There is also a considerable gap between the motivations and ideologies of these actors which thus directly results in different methods and levels of deterrence.⁷¹

The idea and almost urge to de-seat Saddam Hussein from his chair of despotic leadership was not a novel one within the US government. The ‘hawks’ in the administration had long contemplated this idea and in this sense thus 9/11 provided an avenue of opportunity.⁷² Though it was later found that no proof existed for any of the allegations referring to WMD, the Bush administration was doing a good job at pretending and using the incited fear to pursue its goals. This can be displayed, for instance, by Bush’s statement that “you can’t distinguish between Al Qaeda and Saddam when you talk about the war on terror”.⁷³

Knowing that the link between terrorists and WMD was stressed in the Strategy⁷⁵ and the fact that the issue of Iraq was ‘in the air’, it is justifiable to say that negotiations about taking action in Iraq were present from early on. One of the decisive moments which revealed Bush’s intentions was the content of his speech on January 29^th 2002⁷⁶, where he identified, the self-named ‘axis of evil’, being Iraq, North Korea and Iran. With regards to Iraq, Bush reinforced all the claims that his administration had been making until then and informed his audience about the weapons that Iraq had been developing over a decade and the fact that UN inspectors were not allowed to inspect various sites means that ‘this regime has something to hide from the civilised world’.⁷⁷ ‘I will not wait on events while dangers gather. I will not stand by as peril draws closer and closer’ were another sign of the determination to resort to pre-emptive action. When making reference to states which may not be so keen on this war on terror, Bush stated ‘...make no mistake about it: If they do not act, America will’, once again exposing the harsh unilateralist face of the Bush administration.

Today, five years since the first planes started to bomb targets in Iraq, the US is still very much present in Iraq and this will remain so for the foreseeable future. The circumstances under which the war was waged in the first place has been criticized within the general public as well as within political circles and this remains to be so today, where suicide-terrorist attacks occur on almost a daily basis in Iraq.

Lastly, but with no intention of being interpreted as being the least important, the Obama administration also signalled an arguably major shift in its approach when it announced that it had dropped the notion of “war on terror”, a word that more often than not had negative connotations outside the US as well as within it and a word that was used ‘to justify many of his (Bush’s) actions’⁸⁷. For human rights groups, it was associated with Guantánamo and for state leaders it was seen as a ‘with us or against us’ way of thinking.⁸⁸ The announcement, also symbolically made on the day of the UN conference on the future of Afghanistan held in The Hague, marked a promising vision for the future of US policy under the new president.

III. The European Union
3.1 The EU as an actor in the international arena

Before discussing the immediate response of the EU to the 9/11 attacks and thereafter describing what counter terrorism in the EU context actually entails, it would be wise to at least briefly elucidate the position of the EU in the international arena and most importantly its ability to exert its influence. Furthermore, the extent of its ability of conceptualizing a common security and defence policy (CESDP) within the Common Foreign and Security Policy (CFSP) framework is of high relevance here since, together with its Justice and Home Affairs⁸⁹ (JHA) counterpart, it deals with countering terrorism.

JHA as a policy domain was incorporated into the newly-established pillar structure as a result of the 1993 Maastricht Treaty which simultaneously created the EU as an entity.

Despite these considerably vast restructuring, the legal personality of the EU as a whole was not addressed ⁹⁰ and thus it remained vested solely within the EC in the first pillar and only in its areas of competence. This in turn also meant that the JHA pillar was not able to conclude EU-level agreements with third countries which was understandable a substantial hindrance if not near paralysis, considering the scope of the policy domain that the JHA covered and operated in.⁹¹

A change came in 1997 with the signing of the Amsterdam Treaty, when for the first time

the EU was given the capability to exert international presence or actorness in the JHA framework. It was also by the signing of this Treaty that the EU took steps to build a common area of freedom, security and justice, simultaneously providing it with an external dimension.⁹² This development should not be confused with the building of a European Area of Justice, Liberty and Security which was taking place in the same period.⁹³

At this point the 21^st century was already standing on the doorstep, aptly requiring increasing levels of international cooperation than in the past. In the context of this thesis, it is important to emphasise that this cooperation was also becoming ever more sensitive as a human rights and civil liberties were taken into direct account by the JHA. Monar points out however that despite the success of having more external capability and influence, the JHA faced a rather complex challenge. The JHA is in fact split between the first and third pillar, where in the former under Title IV of the TEC, the JHA has competence in asylum, immigration, border controls and judicial cooperation in civil matters in the first pillar. In the latter, on the other hand, under Title IV TEU, the competencies include police and judicial cooperation in criminal matters, falling under the third pillar.⁹⁴ This has repercussions on the legal basis and decision making procedures, where the latter is intergovernmental in the third pillar whereas the first pillar is subject to supranational decision making. Unanimity, which is often required in the third pillar (and second pillar) before any decision is adopted has oftentimes been the recipe for a major paralysis.

The aim of the following pages is to describe the European reaction to 9/11 and particularly it is hoped that an insight into the EU policymaking in this area will reveal the approach the EU is taking in countering terrorism.

On September 14^th, on the newly established day of mourning, a Joint Declaration¹⁰⁰ outlined the general steps the EU would take in the aftermath of the 9/11 attacks. These included the intensification of efforts against terrorism in judicial as well as law enforcement spheres, the realisation of a speedy operational status of the ESDP and the stepping up of the implementation of a ‘genuine European judicial area.¹⁰¹ Den Boer argues that all this swift development showed that at least for a while, 9/11 functioned as a ‘great equalizer’ within Europe, at least as threat perceptions and the appropriate ways to respond were concerned.¹⁰² France in particular proved to be quite active, for instance by renewing its commitment to greater information sharing and a call on other members to accelerate judicial procedures and expand police cooperation.¹⁰³ In addition, leaders and ministers such as Chirac, Schroder and Blair immediately sought cooperation by rallying support of the leaders of countries in the Middle East as well as in China, India and Pakistan, the latter becoming crucial in Bush’s ‘war on terror’.

In addition to this, the European Council urged the JHA Council to implement the measures that were adopted at the Tampere meeting as soon and as efficiently as possible. To this end, the JHA Council drew up the ‘Antiterrorism roadmap¹⁰⁸’, in which it is clearly indicated when the nineteen measures are to be implemented by and the body which is responsible for the smooth and prompt execution. The European Arrest Warrant (EAW), a definition for terrorism and the identification of terrorist groups for the purpose of drawing up a common list were among the first measures to be taken care of. The Roadmap was made available at the end of September 2001. A political agreement, save the Italian delegation, with regard to the list of offences attached to the EAW was reached on November 16^th.¹⁰⁹

At the beginning of October, the EU advised that all Member States freeze any and all funds that were being made available to terrorist activities by individuals as well as organizations¹¹⁰. This position was reiterated on October 8^th by pledging to narrowly cooperate with the US.¹¹¹ The financial flows of the persons and organizations that were cut off were based on the list produced by the UN 1267 Committee¹¹². The first EU file which listed terrorism-associated individuals and organization was published as an annex to the Council Common position of 27 December 2001, which also included the adoption of a definition of terrorism.
Rewinding back to October, as the EU was advising Member States to ensure that known terrorist-feeding funds are frozen, Bush’s US was ready to launch its rapidly prepared attack on targets in Afghanistan, notoriously known and already mentioned Operation Freedom. The campaign was not readily backed by the EU as a whole, but rather on an individual member state basis. Tony Blair proved to be a reliable ally when he involved vast amounts of UK resources into the operation. Other partners and contributors¹¹³ included EU and non-EU but European countries as well as other less self-evident countries such as Russia, Pakistan as well as the Arab Emirates. At this point, EU support for Bush’s actions was probably at its peak.
In December when the European Council meeting convened in Laeken, it was quite obvious that the Antiterrorism roadmap was being followed closely. The three major issues that were on the agenda of the meeting were the European Arrest Warrant, the adoption of a common definition of terrorism and the ways to create a solid area of freedom, security and justice. The EAW, its concrete provisions, character and process by which persons were to be extradited was finally formulated. Significantly also and directly related to the counterterrorism policy was the ‘operational status’ granted to the European Security and Defence Policy (ESDP) under the umbrella of the CFSP. Further yet, a decision on the establishment of the so called Joint Investigation Teams (JITs).

This further accredited the Laeken summit with making real and tangible progress in the area of judicial and law enforcement cooperation as well as within these authorities on a national level as well as on a cross-European level. It thus made successful attempts at harmonizing the creation of an EU counterterrorism strategy.¹¹⁴

Common Position¹¹⁵ on Combating Terrorism¹¹⁶ and a Common Position on the application of specific measures to combat terrorism¹¹⁷. In its wording, the former is almost an exact copy of Security Council Resolution 1373, among others, stipulating that all member states are to become parties to all international agreements relating to terrorism¹¹⁸, and those who are parties already, to implement the provisions as soon as possible¹¹⁹. A definition of what constitutes a ‘terrorist act and a terrorist group’ is laid down in the Common Position on the application of specific measures to combat terrorism, together with a list of persons, groups and entities suspected of having carried out or being involved in terrorist activities and thus for which restrictive measures are to apply as according to SC Resolution 1373 is provided in the annex¹²⁰. The Common Position also obliges EU member states to offer each other the widest possible extent of cooperation in ‘preventing and combating terrorist acts’¹²¹ The provision also specifies the method that shall be employed to achieve this, namely ‘…through police and judicial cooperation in criminal matters within the framework of Title VI of the Treaty on European Union’

The organizational structure and function of Europol was encompassed in the Maastricht Treaty¹⁴⁵ and by 1994 it could boast its status of limited operational activity in The Hague¹⁴⁶. At this point, its mandate basically comprised of international drug crimes but over time this mandate was somewhat extended to other types of crimes amongst which were organized crime, financial crime and human trafficking. A legal personality was conferred to Europol by the Europol Convention¹⁴⁷, signed in July 1995 and in force since October 1998. Since 1999, Europol has been fully operational but it must be noted that it does not have executive authority. The Convention also expanded and clarified Europol’s mandate whereby its areas of investigation and of competence range from drug, vehicle and human trafficking to money-laundering and terrorism¹⁴⁸.

But it was not until 9/11 that things really started to move along within the EU and understandably also within Europol. In the immediate aftermath of 9/11, a Europol Operational Centre was established with the aim of providing a non-stop provision and facilitation of information¹⁴⁹. As decided by the JHA Council meeting on September 20^th, the exchange of information between member states’ intelligence and police authorities and Europol was to be intensified. In addition, a Counter-Terrorism Task Force, an expert counter-terrorism unit consisting of liaison officers from police and intelligence services was set up and became fully operational in November 2001¹⁵⁰. The objectives of this new unit were to collect analyse all relevant information and use it for the purpose of generating a threat assessment report which listed the possible targets, modus operandi and the costs that would be incurred on Member states.¹⁵¹ Since then, the task force had produced several annual threat assessment reports including the threats within Europe and an overview of the counter terrorism measures which are in place within the framework of the European Union¹⁵². The former is further divided into two dossiers; ‘Islamic Terrorism’ and ‘Dolphin’, where the latter focuses on all terrorist groups and activities which are not included in the former.¹⁵³ Assessments are also made with relation to the financial flows which support terrorist activities.

Understandably, the task force is not left on its own to deal with a vast of an issue but rather there are several programs which function alongside it. One of these is the Counter Terrorism Program, which was established with the aim of coordinating all Europol activities concerning (counter)terrorism¹⁵⁴. Furthermore, Europol plays a supportive role in investigations as well as the set up and operations of joint investigation teams, which are initiated upon the request of a member state¹⁵⁵. Another significant and relevant program is the Networking Program, which as its name suggests, is tasked with establishing contacts and connections between the experts within Europol which are involved in the programs and experts and law enforcmenet authorities of non-EU member states.¹⁵⁶ The Prepardness Program operates to achieve the development of multitiered and multilateral investigation teams in the event that a terrorist attack occurs on EU soil.

3.2.4 The role of Eurojust

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  to improve cooperation between the competent national authorities in the investigation and prosecution of serious crime, particularly when it is organized, involving two or more member states;
  
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  to stimulate and improve the coordination, between the competent authorities of the Member States, of investigations and prosecutions in the Member States, taking into account any request emanating from a competent authority of a Member State and any information provided by any body competent by virtue of provisions adopted within the framework of the Treaties¹⁶³;
  
• 
  to improve cooperation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests¹⁶⁴
  

The work of pre-Eurojust to accomplish these objectives started on March 1^st 2001 and was to continue until the official document to create Eurojust as a permanent unit was produced and thereafter adopted¹⁶⁵. In the meantime, the cases referred to pro-Eurojust rose up to 180 by November¹⁶⁶.

The discussions and negotiations to reach a unanimous support for the conditions creating Eurojust were not particularly short and simple but, as mentioned before and as will be mentioned on many occasions, the events of September 11^th represented a real impetus for the wave of decisions, conventions, statements and agreements produced and reached within the EU. By the Decision of February 28^th 2002 on setting up Eurojust with a view to reinforcing the fight against serious crime¹⁶⁷, Eurojust was formally established by the Council as an independent body with a legal personality, based in The Hague and operational since May 2002. The objectives to be attained remained the same but its competencies were extended in the aftermath of 9/11 to include terrorism as well as crimes over which Europol has authority, alongside its ‘original’ competencies in offences such as drug trafficking, trafficking in human beings, cybercrime and (tax)fraud. by the Council, to create contact points in the law enforcement and judicial authorities to coordinate the fight against terrorism. The steps to achieve ‘the widest possible assistance’¹⁶⁸, which are stipulated in the Common Position on the application of specific measures to combat terrorism, can partly be achieved through the European Judicial Network¹⁶⁹, with regards to the judicial cooperation component in particular¹⁷⁰. The EJN, a decentralised network of lawyers and judges with contact points throughout the EU, works alongside Eurojust.

On the initiative of the Spanish Presidency, a political agreement was reached which stipulated the need to create contact points within the law enforcement and judicial authorities in order to effectively coordinate the fight against terrorism. This in turn resulted in the reiteration of the decision that each member state should designate a national correspondent for terrorism¹⁷¹, at the 19 December 2002 European Council meeting¹⁷². Whereas the February Council meeting concluded that such a national correspondent may be appointed and that in relation to terrorism this should be a high priority, the December meeting actually stated that each member state shall appoint such a Eurojust national correspondent for terrorism. In addition, it is clearly stated that each Member State ‘shall ensure that this correspondent [...] has access to and can collect all relevant information concerning and resulting from criminal proceedings conducted under the responsibility of its judicial authorities, with regard to terrorist offences involving any of the listed persons, groups or entities¹⁷³’.

In the months that followed, a decision was taken to reformat and ultimately repeal this decision, with the aim of widening the scope from terrorist offences committed by in the Annex listed persons, groups or entities to all¹⁷⁴ the offences defined by Framework Decision 2002/475/JHA on combating terrorism. Adopted in September 2005, this decision¹⁷⁵ furthermore specifies the need to designate a specialised service which will have access to any information surrounding criminal investigations conducted by its authorities with respect to terrorist offences¹⁷⁶. In turn, any and all information on all¹⁷⁷ stages of criminal investigation and proceedings should be made available to Eurojust.¹⁷⁸ Lastly, it is stipulated that all requests for mutual legal assistance particularly with respect to terrorist offences are to be dealt with ‘as a matter of urgency and are given priority’.¹⁷⁹ At the end of 2008, people within as well as without Eurojust realised that it was time to review the work of Eurojust and see where its objectives could be met with more efficiency and less time constraints. The outcome of this was a new Framework Decision¹⁸⁰, drawn up in July and adopted just four month later in November 2008. The main change that would come about once this framework decision is implemented¹⁸¹ is increased competencies granted to the National members where in the end these competencies would be autonomous¹⁸² and harmonized in order to provide for a smooth and speedy of cases, especially in urgent matters.
If one speaks in very simplistic terms, Eurojust and Europol are basically counterparts except that Eurojust coordinates the efforts of judicial authorities whereas Europol deals primarily with law enforcement and intelligence synchronization. It should thus come as no surprise that these two bodies, both conventionally based in The Hague, closely cooperate together. The centrepiece document in this regard is the agreement between Eurojust and Europol¹⁸³ drawn up in 2004. Very general in nature, it calls for an intensified exchange of information and for the most efficient way of going forth in achieving their objectives i.e. the prevention of work duplication¹⁸⁴. The agreement also stipulates that Eurojust and Europol may jointly set up joint investigation teams and participate in them, upon the request of one or more member states and if their competencies so allow¹⁸⁵.

As bodies dealing with and facilitating cross border persecutions and investigations, Europol and Eurojust represent a strong position in the fight against terrorism given the fact that terrorist groups operate in more than one country¹⁸⁶. In this sense thus, they symbolize a bridge between different judicial and law enforcement systems and a channel through which information flows in a more straightforward fashion.

Attention is most often paid to the gyre that widened as a result of the war policy against Iraq (see chapter IV), rather than the gyre that developed within the European continent and within the EU in particular. At this point it is however necessary to mention the crack that was generated within the EU, where member states were essentially divided into the ‘pro-war’ and ‘anti-war’ camps. This was reinforced by the US bracketing of the opposition camp as ‘Old Europe’, thus ‘New Europe’ being the friendly camp accordingly.¹⁸⁷ The main members of the former were France and Germany, significantly also being the biggest member states, while the pro-war stance was taken most staunchly by the UK, but also by Spain, Italy, Portugal and the ten countries that acceded to the EU in May 2004. In this regard, the old Europeans were not shy in their criticism of the to-be EU member states as well as those whose accession negotiations were still underway (Romania and Bulgaria), when they expressed their pro-US stance by joining existing member states in endorsing a last chance to disarm warning in mid February.¹⁸⁸ The then French President Chirac identified the candidate states as being ‘childish and irresponsible’. Schroder defended his and his country’s stance in asserting that ‘the Middle East needs a lot of peace, not a new war’.¹⁸⁹