Doctor Niovi Vavoula explains three ways in which the EU has responded to the phenomenon of “foreign fighters” in the post-Paris attacks era.
Full tittle: Prevention, Surveillance, and the Transformation of Citizenship in the 'Security Union': The Case of Terrorist Fighters.
In the aftermath of the terrorist events in Paris in 2015, a new securitization impetus has been created with governments of European Union (EU) Member States and EU institutions calling for the strengthening of security measures within a framework of national and European emergency. A multi-faceted EU response to the phenomenon of the so-called ‘foreign terrorist fighters’ (FTF) has thus been developed with the ultimate aim of establishing a ‘Security Union’.(1) This response is underpinned by the perceived urgency to address the issue that has justified both the acceleration of negotiations on legislative dossiers that had been in the legislative drawer prior to the events and the insertion of new measures building upon existing – not necessarily related to security aspects – EU legislation.
This chapter critically assesses the emerging EU legal framework aimed at eradicating the FTF phenomenon by focusing on three key strands of action: a) the criminalization of travelling for the purpose of terrorism; b) the corrective approach towards the second generation Schengen Information System (SIS II) by optimizing the alerts registered therein and intensifying border controls for EU citizens; and c) the surveillance of mobility via the setting up of an EU Passenger Name Records (PNR) system. In examining the implications of these developments for the protection of fundamental rights and citizenship in the EU, this contribution analyses anti-FTF legislation as a primary example of a model of preventive justice at EU level. Preventive justice is understood here as the exercise of state power in order to prevent future acts deemed as constituting security threats. As such, preventive justice is forward thinking and singles out individuals in terms of riskiness and suspicion following an ongoing risk assessment.(2) The emerging model of preventive justice can take various forms: from the state extending its reach to gradually remove the link between criminalization and prosecution on the one hand and the commission of concrete acts on the other,(3) to conflating immigration control with crime prevention under the guise of the term ‘border security’,(4) and the deployment of generalized surveillance mechanisms.(5) In this framework, the present chapter analyses these three legal developments with a view to highlighting the challenges posed to the transformation of fundamental rights and citizenship in the EU in an era of emergency and pre-emption.
II. The criminalization of ‘Foreign Terrorist Fighters’
On 15 March 2017, Directive 2017/541 on combating terrorism(6)was adopted replacing the pre-existing legal framework(7) with a view to broadening the scope of terrorism offences by criminalizing a series of acts. In particular, under the revised rules training or being trained for terrorism purposes and providing or collecting funds with the intention or the knowledge that they are to be used to commit terrorist offences and offences related to terrorist groups or terrorist activities constitute criminal offences. (8) Importantly, the revised rules expressly require EU Member States to prevent individuals from travelling to conflict zones by penalizing travelling within, outside, or to the EU for terrorist purposes, as well as organizing and facilitating such travel, including through logistical and material support. The insertion of terrorism travel as a criminal offence at EU level is anything but an isolated phenomenon; therefore, it must be viewed within a broader global security context. This section will explore the genesis and the evolution of the criminal offence of ‘travelling abroad for the purposes of terrorism’ from its original global context to its latest incarnation in EU rules.
A. Global actors ‘setting the scene’ The first step taken in this respect originated in the United Nations (UN) Security Council’s acting as a norm entrepreneur in ‘global administrative law’.(9) Resolution 2178 (2014) on the phenomenon of ‘foreign terrorist fighters’ urged participating states to adopt a series of wide-ranging measures,(10) stressing that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:
(a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training;
(c) the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training.(11)
Along the same lines, Resolution 2195 (2014) reaffirmed Member States’ obligation to prevent the movement of terrorists or terrorist groups in accordance with applicable international law, by, inter alia, effective border controls.12 In the aftermath of the Paris events in November 2015, the UN Security Council adopted Resolution 2249 (2015) that called for the intensification of participating States’ efforts to stem the flow of FTF to Iraq and Syria and for preventing and suppressing the financing of terrorism.(13) In addition, implementation of previous resolutions was identified as a key priority.
The key provisions in the Resolution 2178 (2014) are transplanted into the Additional Protocol to the Council of Europe Convention on Prevention of Terrorism adopted by the Council of Europe (CoE).(14) At the heart of the Protocol is the implementation at the regional level of the acts of travelling abroad, which defines ‘travelling abroad for the purpose of terrorism’ as travelling to a State ‘which is not that of the traveller’s nationality or residence, for the purpose of the commission of, contribution to or participation in a terrorist offence, or the providing or receiving of training for terrorism’.(15) Member States were thus called to adopt measures so as to establish that travelling abroad for the purpose of terrorism from its territory or by its individuals, when committed unlawfully and intentionally, constitutes, in line with the States’ constitutional principles, a criminal offence under their domestic law.(16) Attempt is also penalized.(17) The explanatory report accompanying the Protocol illustrates the prerequisites to be fulfilled for prosecuting travels: a) the real purpose of the travel must be to commit or participate in terrorist offences, or to receive or provide terrorism training in a state other than that of their nationality or residence; b) the perpetrator must commit the offence intentionally and unlawfully; c) the act of travelling must be criminalized under very specific conditions and only when the terrorism purpose is proven on the basis of evidence submitted to an independent court for scrutiny pursuant to national law, the specific applicable criminal procedures, and the rule of law.18 In addition, arts. 5 and 6 of the Protocol further penalize funding travelling abroad for the purpose of terrorism and organizing or otherwise facilitating travelling abroad for the purpose of terrorism.
From a comparative standpoint, it is noteworthy that the Protocol envisages certain terminological differences in comparison to Resolution 2178 (2014) (e.g. substitutions of the terms ‘perpetration’ and ‘planning and preparation’ with the terms ‘commission’ and ‘contribution’ respectively). Astonishingly, the drafters of the Protocol understood the wording of the Resolution as not imposing an obligation for States to criminalize terrorist travel. Instead, states could treat such act as a preparatory offence to the main terrorist offence and possibly as an attempt to commit a terrorist offence. However, the intervention of the CoE in this context has acted as a legitimizing catalyst granting legally binding force to the UN initiatives, which originated outside traditional public international law fora. At the same time, the weight of the UN Security Council Resolutions and consequently the role of the UN Security Council in adopting global standards seem to be somewhat underestimated by the CoE, which wishes to retain for itself the role of a pivotal regional actor in standards setting and not merely as a middleman.
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Vavoula, Niovi, Prevention, Surveillance, and the Transformation of Citizenship in the ‘Security Union’: The Case of Foreign Terrorist Fighters (November 21, 2018). Queen Mary School of Law Legal Studies Research Paper No. 293/2018. Available at SSRN: https://ssrn.com/abstract=3288444