Counter-Terrorism and International Law Since 9/11, Including in the EU-US Context

© T.M.C. Asser Press and the authors 2015
Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_10

10. Counter-Terrorism and International Law Since 9/11, Including in the EU-US Context

Gilles De Kerchove  and Christiane Höhn 

Council of the European Union, Brussels, Belgium



Gilles De Kerchove (Corresponding author)


Christiane Höhn


The article by EU Counter-Terrorism Coordinator Gilles de Kerchove and his adviser Christiane Höhn provides an inside view into the EU’s practices and views related to counter-terrorism and international law. It explains the EU’s criminal justice approach to the fight against terrorism and provides arguments for the effectiveness of this response in practice. The authors set out the tools for regional law enforcement and judicial cooperation the EU has adopted since 9/11, based on the principle of mutual recognition, as well as EU-US cooperation in this area. It also looks at the role of the military in the fight against terrorism. In a second part, the article deals with questions related to the international legal framework for the fight against terrorism, such as the existence of not of an armed conflict in the legal sense against Al Qaeda. It also explains relevant initiatives in the EU-US context, including the EU-US legal advisers’ dialogue, the EU framework to support the closure of Guantánamo and the EU input to the implementing provisions of the National Defense Authorization Act.

European UnionCounter-terrorismTerrorismCriminal justiceLaw enforcementEU-US relationsEU-US legal advisers dialogueUnited StatesInternational lawInternational humanitarian lawHuman rights lawGuantanamoNational defense authorization actRemotely piloted aircraft systemsDetaineesPrinciple of mutual recognition

Gilles De Kerchove is the European Union (EU) Counter-Terrorism Coordinator (CTC). Dr. Christiane Höhn is adviser to the EU CTC. The views expressed in this article are those of the authors alone and do not necessarily reflect the views and positions of the Council of the European Union.

10.1 Introduction

The US is the EU’s most important partner in the fight against terrorism.1 Strong EU-US cooperation is indispensable to fight terrorism effectively. The EU Member States strongly rely on the US for the fight against terrorism. Since 9/11, many EU-US tools have been adopted for the fight against terrorism, such as EU-US Mutual Legal Assistance and Extradition Agreements, cooperation agreements between the US and the EU agencies Europol and Eurojust, EU-US Passenger Name Record (PNR) and Terrorist Financing Tracking Program (TFTP) agreements. The EU is working in particular with the Department of State, the Department of Justice, the Department for Homeland Security (transport security, prevention of radicalization, foreign fighters,2 PNR) and the Treasury Department (terrorist financing), as well as with the White House. EU-US cooperation on counter-terrorism (CT) capacity building in third countries is strong, as is cooperation in the UN and Global Counterterrorism Forum (GCTF) contexts. Best practices are shared and cooperation is close in challenging areas such as the prevention of radicalization and foreign fighters, which have become a serious threat over the past year. Measures to fight the threat to civil aviation have been aligned and strengthened on both sides of the Atlantic, including related to cargo after the attempted attack by explosives hidden in cargo from Yemen in 2009. Cooperation to fight terrorist financing is strong as well.

Although the interpretation of international law sometimes differs, the EU and the US share the view that international law has to be respected in the fight against terrorism. The EU has expressed concerns about the number of policies adopted in the context of the so-called “Global War on Terror” and the “global war/armed conflict against Al Qaeda” in the legal sense since 9/11. Changes which resulted in more legal rights for detainees have started to occur during the Bush Administration, such as the so-called McCain Amendment (legislation) clarifying that the prohibition of cruel, inhuman and degrading treatment also applies extraterritorially, decisions by the US Supreme Court which extended some legal rights and protections to Guantánamo detainees and the wish expressed by President Bush to close Guantánamo. The EU has welcomed further policy changes by President Obama such as the decision to close Guantánamo within a year, the end of “enhanced interrogation techniques” and the end of secret detention. However, divergent approaches on some issues related to the fight against terrorism and some questions remain.

This article sets out a number of issues related to counter-terrorism and international law since 9/11. Special emphasis is put on the criminal justice approach, the cornerstone of the European CT effort and also one of the most successful policy options used by the US in the fight against terrorism.

10.2 The Criminal Justice Approach to the Fight Against Terrorism

The EU and the Member States use and promote a criminal justice approach for the fight against terrorism, including Al-Qaeda (AQ) related terrorism. This has not changed after 9/11. The fight against terrorism is carried out by the civilian actors: intelligence services, which operate outside the EU context, according to Article 4 of the Treaty of the European Union; police; law enforcement; judicial actors (investigators, prosecutors, judges) and the prison system. The CT efforts are geared towards preventing attacks and investigation and prosecution. It is a task not only for the Ministers of the Interior, but also for the Ministers of Justice.3 Challenges remain, both in the national and the EU context. The criminal justice response has to adapt to new operating methods of the terrorist groups, such as advocating lone-actor attacks (the most deadly of which was committed in July 2012 in Oslo by Anders Breivik, a Norwegian right-wing extremist who killed 77 people and wounded 151) and traveling to hotspots such as Syria to join terrorist groups there. To improve the criminal justice response across the EU, Directorate-General (DG) Justice is financing a project carried out by the French Ecole Nationale de la Magistrature, in cooperation with the EU CTC and several other EU Member States, where since December 2013 European CT investigators, prosecutors and judges share best practices on challenges such as the terrorism and drugs nexus, use of intelligence as evidence, cooperation of judicial players with intelligence agencies, the military and emergency response after an attack. After conclusion of the project, the EU CTC will bring the outcomes to the attention of policy makers.

10.2.1 Context of the Fight Against Terrorism in the EU and the Member States

Before 9/11, a number of EU Member States already had a long history and experience in fighting terrorism that had produced many victims, including inter alia the Irish Republican Army (IRA) in Northern Ireland, the Euskadi Ta Askatasuna (ETA) in Spain and France, the Red Army Faction (RAF) in Germany and the Red Brigades in Italy. Given the fact that the terrorist threat was different in the various EU Member States (no terrorist organization operated all across Europe) and that Justice and Home Affairs (JHA) was only added to the EU’s remit with the Maastricht Treaty in 1993, the fight against terrorism was mainly dealt with at the national level and not at the EU level. This changed after 9/11, as AQ-related terrorism now threatened all EU Member States.

In the aftermath of 9/11, terrorism was the main driving force behind the adoption of a number of EU tools in the JHA area, which were not necessarily CT specific but also covered other forms of serious crime, both inside the EU and within the US. Terrorism received the attention of the EU Heads of State and Government. In 2004, after the attacks in Madrid, the European Council created the post of the EU Counter-Terrorism Coordinator (CTC),4 the mandate of which was set out by the European Council in the Stockholm Programme5 after entry into force of the Lisbon Treaty. In 2005, after the attacks in London, the European Council adopted the EU Counter-Terrorism Strategy.6 While the Member States have the main responsibility regarding the fight against terrorism, the EU plays a supporting role. Internal security has become a shared competence in the Lisbon Treaty.

10.2.2 Strategic Reasons for the Criminal Justice Approach

Both before and after 9/11, the EU and its Member States have taken a criminal justice response to terrorism. Terrorism is a crime that needs to be investigated and prosecuted. Treating terrorism as the crime that it is de-glorifies terrorists and shows them as the criminals they are (they would rather be seen as combatants and martyrs). It also avoids terrorist groups using counter-terrorism measures as propaganda tools leading to radicalization and recruitment to terrorism—as for example President Obama has said happens with Guantánamo. (Perceived) double standards pose the risk of feeding into the terrorist narrative. A criminal justice response, which provides the terrorist suspects with full respect of human rights, rule of law and fundamental freedoms, defends our Western values and does not change who we are as societies because of the terrorist threat. The terrorists want us to change and provoke us to betray our values in the response. Maintaining the traditional criminal justice paradigm and using regular criminal courts to try terrorists does not give the terrorist groups this victory. Criminal trials are also important for the victims.

To be effective in the long term, CT policy requires full respect of human rights, rule of law and international law.7 This is why the EU CT Strategy is “the European Union’s strategic commitment to fight terrorism globally while respecting human rights.” The criminal justice response is also set out in the EU CT Strategy under the “Pursue” pillar:

We will further strengthen and implement our commitment to disrupt terrorist activity and pursue terrorists across borders. Our objectives are to impede terrorists’ planning, disrupt their networks and the activities of recruiters to terrorism, cut off terrorists’ funding and access to attack materials, and bring them to justice, while continuing to respect human rights and international law.

10.2.3 The Criminal Justice Response in the Context of the UN and the Council of Europe

The criminal justice response to the fight against terrorism has also been recognized and required of the UN Member States by the UN Security Council, despite recognition of the “inherent right to self-defense”, which has been used by some as an argument against the criminal justice approach to terrorism: In Resolution 1368 of 12 September 2001, the UN Security Council

calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable.

In the key, legally binding resolution 1373 of 28 September 2001 “Threat to international peace and security caused by terrorist acts”, the UN Security Council acted under Chapter VII and

decide[d] also that all States shall: Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings.

The UN CT conventions also set out a criminal justice response.

The criminal justice response is also taken by the Council of Europe, which had already adopted the Convention for the Suppression of Terrorism in 1977 and adopted the Convention on Prevention of Terrorism in 2005. Both set out various terrorist crimes and provisions for international cooperation in criminal matters.

10.2.4 EU Tools to Strengthen the Criminal Justice Response to CT in Europe Since 9/11

After 9/11, this included the adoption of additional legislation creating a powerful legal framework. In the EU, instruments have been adopted both at the national and the EU level. Because of the suppression of border controls inside the Schengen zone, flanking measures are necessary to facilitate law enforcement and justice cooperation across borders.

In order to create the same minimum standards for the definition of the terrorist crimes across the EU, in 2002 the EU Framework Decision on Combating Terrorism8 was adopted and updated in 20089 (to cover new behaviors such as public provocation to commit terrorist offenses in particular on the internet, recruitment for terrorism and training for terrorism, as well as implementing the Council of Europe Convention on the Prevention of Terrorism). EU Member States are legally obliged to transpose these into national legislation. The Commission will publish an implementation report about the transposition of the Framework Decision in the Member States in the autumn of 2014. With these common minimum requirements for criminalization of terrorist offenses across the EU the situation that terrorists commit a crime in one EU Member State and then travel to another Member State where the act is not punishable is avoided. Hence, the Framework Decisions close potential gaps in the response and have played a major role in strengthening the CT legal framework. Contrary to the UN, the EU has a common legal definition of the terrorist intent, although the material law offences, such as sabotage, are not harmonized.

The material terrorist crimes are not static, but have to evolve along with the threat. The EU needs to reflect upon whether the current crimes are still sufficient, or whether an updating of the Framework Decision is necessary to reflect the phenomena of lone-actor terrorism (which cannot be covered by membership in a terrorist group) and foreign fighters—European citizens and residents who travel to hotspots such as Syria to receive terrorist training and join terrorist groups there and fight with them. While some Member States have adopted legislation to deal with the latter phenomenon, such as explicitly criminalizing the membership in a terrorist organization abroad, the EU Framework Decision criminalizes only providing terrorist training, but not receiving it. Adapting the Framework Decision would produce a common EU legal framework, which facilitates cooperation, also in the context of the EU agencies.

One counter-argument used against the criminal justice response is that it cannot prevent attacks but it only serves to convict the perpetrators after an attack has been committed. This is not true; in the EU and Council of Europe context, a number of preparatory offenses have been created, which criminalize inherently dangerous behavior before an attack is committed, such as public provocation to commit a terrorist attack, membership in a terrorist organization, etc. As set out above, the UN Security Council also requires criminalization of preparatory acts.

On the other hand, some human rights advocates argue that the terrorist crimes now go too far and kick in too early by not requiring an attack to have happened. However, there are crimes in other areas than CT that also criminalize inherently dangerous behavior as such, for example membership of a criminal organization, drunken driving or conspiracy to commit a serious crime. This is a known concept of criminal law. If a criminal justice response is advocated, the legal framework and therefore also the material crimes have to provide the necessary tools to allow the disruption of attacks and convictions before an attack is committed. All terrorist offenses, however, require a number of objective and subjective elements and have to respect human rights, such as freedom of speech, freedom of thought, principle of legality and certainty of crimes, etc. It is also important to note that the EU CT legislation is not overbroad. For example, the broad crime of “material support to terrorism”, which in the US context concerns the providers of humanitarian assistance, as all forms of support is criminalized, does not exist in the same way in the EU. The EU legislation criminalizes “participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the terrorist group”. The requirement of contribution to the criminal activities of the terrorist group narrows the criminalization, so that, for example, provision of humanitarian assistance in areas where terrorist groups operate is not prohibited nor negatively affected by EU CT legislation.10

EU CT measures are being reviewed by the European Court of Justice (which, since the Lisbon Treaty, with a transitional period of 5 years until 1 December 2014 for Maastricht and Amsterdam instruments, is also competent in the JHA area), the EU Charter for Fundamental Rights applies. All CT measures of EU Member States are subject to the review of the European Court of Human Rights (ECtHR), so that external human rights review takes place. With the accession of the EU to the European Convention of Human Rights, the ECtHR will also be able to review EU CT measures. Since 9/11, there have been numerous cases related to terrorism, which in some cases have required policy adjustments (such as, for example, in the sanctions area). This shows the strong impact of the human rights jurisprudence on CT in Europe. In addition to the judicial review, the European Parliament is now competent to adopt legislation in internal security, and therefore CT, in co-decision with the Council, so that the democratic legitimacy has been strengthened.

In addition to the material criminal offenses, the EU has created tools for cross-border cooperation in law enforcement and criminal justice that are based on the principle of mutual recognition in criminal matters and go way beyond traditional mutual legal assistance and extradition. The European Arrest Warrant11 replaces extradition and has shortened the time to transfer a terrorist suspect to another EU Member State from sometimes over a decade (for example Rahid Ramda, the mastermind of to the 1995 terrorist attacks against the public transport system in Paris,12 was arrested in London in 1995 and extradited to France in 2005. He was convicted in France in 2007 and is now serving a life sentence) to a few weeks (for example, Osman Hussein/Hamdi Isaac, one of the perpetrators of the London bombings of July 2005, was arrested in Italy at the end of July 2005 and extradited to the UK in September 2005, based on a European Arrest Warrant. He has since been convicted in the UK).

In the area of evidence, the principle of mutual recognition has been progressively implemented: the Framework on execution of orders freezing property and evidence (2003)13 applied the principle of mutual recognition to the freezing orders (but transfers had to be asked separately). The European Evidence Warrant (2008)14 applied to existing evidence and was complementary to the Mutual Legal Assistance Agreement (MLA).15 The recently adopted European Investigation Order16 goes a lot further and applies also to the collection of evidence. It creates a comprehensive system for obtaining evidence in cases with cross-border dimension.

The goal of the directive is to allow member states to carry out investigative measures at the request of another Member State on the basis of mutual recognition. The investigative measures would, for example, include interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts. The new rules would replace the current patchwork of legal provisions in this area with a single new instrument aiming to make judicial cooperation on investigations faster and more efficient. It will introduce automatic mutual recognition of investigation orders and limit the grounds for refusal by another EU state to execute the order, while at the same time providing legal remedies to protect the defense rights of concerned persons.17

Controlled deliveries carried out in another Member State are regulated by Article 12 EU MLA, the Schengen Implementation Convention18 as well as the Naples II Convention19 for customs.

The EU agencies Europol20 and Eurojust21 have been created and strengthened and the legal framework for Joint Investigation Teams22 between several Member States has been created. In the context of Eurojust, in addition to strategic and tactical meetings, where investigations and prosecutions related to a particular terrorist threat (such as the Kurdistan Worker’s Party (PKK), foreign fighters) are shared, case coordination meetings are possible which allow for real time coordination of arrests across EU Member States, for example. The Terrorism Convictions Monitor provides an overview over terrorism trials and judicial arguments throughout the EU. Europol provides support and expertise with regard to collection, sharing and analysis of information, support to specific investigations and centers of excellence, such as EC 3 on cybercrime and the Check the Web project, which provides analysis to Member States of jihadist websites. As the terrorist groups operate across borders, cooperation in the context of Europol and Eurojust facilitates the response by investigators and prosecutors across Europe.

This is the most advanced form of regional cooperation in this area worldwide, and has started to inspire other regions to develop similar tools. One example is that the African Union has started to work on an African Arrest Warrant.

10.2.5 EU-US Judicial and Law Enforcement Cooperation Tools

After 9/11, the judicial and law enforcement cooperation has also been strengthened among the EU and the US: a modern legal framework covering all 28 EU Member States has been created with the entry into force of the EU-US Mutual Legal Assistance and Extradition Agreements and cooperation agreements between the US and Europol and Eurojust. The US now has a liaison officer with Europol and a liaison prosecutor with Eurojust and participates in meetings and case coordination where relevant. It can also initiate case coordination for specific cases.

10.2.6 Effectiveness of the Criminal Justice Response to Terrorism in Practice

The criminal justice response to terrorism has proven effective on both sides of the Atlantic. Numerous terrorists have been convicted in regular criminal courts to long sentences, including before attacks were committed, both in EU Member States and in the US.

President Obama said in May 2013:23

Much of our best counterterrorism cooperation results in the gathering and sharing of intelligence, the arrest and prosecution of terrorists. And that’s how a Somali terrorist apprehended off the coast of Yemen is now in a prison in New York. That’s how we worked with European allies to disrupt plots from Denmark to Germany to the United Kingdom. That’s how intelligence collected with Saudi Arabia helped us stop a cargo plane from being blown up over the Atlantic. These partnerships work […] Our courts have convicted hundreds of people for terrorism-related offenses, including some who are more dangerous than most GTMO detainees.

Attorney General Eric Holder issued the following statement on 20 May 2014 in response to a federal jury in Manhattan unanimously reaching a guilty verdict against Abu Hamza al-Masri, who had been extradited from the UK and was convicted to life for a number of AQ-related terrorist related offenses committed around the world in a regular Article III (civilian) federal court in New York:

In both word and deed, Abu Hamza supported the cause of violent extremism. His conviction is as just as it was swift. This case is all the more noteworthy since it continues a trend of successful prosecutions of top terrorism suspects in our federal court system. With each efficiently delivered guilty verdict against a top al Qaeda-linked figure, the debate over how to best seek justice in these cases is quietly being put to rest.

The criminal investigations and trials led to the collection of valuable information on the terrorist groups and networks. Criminal trials provide incentives for the terrorist suspects to cooperate and provide information, which interrogations in other contexts do not, such as reduction of sentences. In spite of strict rules for evidence, the regular civilian courts were able to convict a high number of terrorists. After the London and Madrid attacks, the law enforcement and criminal justice response was taken to these large-scale attacks. In Spain, the perpetrators of the Madrid attacks have been convicted in fair and successful trials, which do not serve the terrorists as propaganda material. In Norway, the trial of Breivik provided a strong counter-narrative to the terrorist narrative—the legal system provided all the rights and protections to the terrorist who had committed atrocious attacks, and nevertheless was able to convict him with a life sentence.

Since 9/11, many terrorists have successfully been convicted in US courts, including terrorists arrested overseas. The US government has provided many arguments for the effectiveness of the regular criminal justice system to deal with AQ-related terrorism, including a number of high profile convictions to life sentences. However, resistance in parts of the US population and Congress to using regular Article III courts to try foreign terrorist suspects remains strong.

Given the concept of the transnational armed conflict in the legal sense with AQ and associated forces in which the US sees itself, criminal trials are only one of several tools which can be chosen by the US Administration to incapacitate terrorists. The other tools in the US arsenal are (indefinite) law of war detention without trial (based on the armed conflict in the legal sense with AQ and associated forces) and trial in Military Commissions for foreign terrorist suspects as well as targeted killings abroad. Hence, the—difficult—criminal justice path where a conviction has to be gained in Court is optional; “easier” options are available (evidence rules are more relaxed in Military Commissions, which are legally only allowed to try aliens, not US citizens). With regard to AQ-related terrorist suspects, going through the criminal justice process with all the procedural guarantees for the defendant is not required to receive the result of long-term detention. The question remains, though, about what this optional toolbox approach means for a rule of law society and its fundamental human rights guarantees.

This optional approach, together with rhetoric since 9/11 that a war in the legal sense is needed to fight AQ-related terrorism, might be the cause for political opposition to regular civilian trials in the US that does not exist in Europe. Attempts in Congress to prohibit criminal trials for foreign terrorist suspects were only narrowly defeated and the National Defense Administration Act 2012 created a default for military detention of alien terrorist suspects having attempted to commit or committed an attack (see below). Let’s look at the various arguments in turn: