Cian C. Murphy, The Dickson Poon School of Law, King’s College London
The transnational public sphere continues to be gradually suppressed. The European Union’s initial legislative response to recent killings by Islamic State militants in Europe and elsewhere is a draft EU Directive on Combating Terrorism, which was published last month. The Directive, which seeks to expand the scope of EU law in national criminal law regarding terrorism, will replace the Framework Decision on Combating Terrorism, which was initially approved in 2002 and revised in 2008.
The Directive may be more important in terms of constitutional law in this area than criminal law. The majority of the Directive’s substance is already covered by the Framework Decision (as amended), so Member States who have diligently transposed the Framework Decision won’t need to do much more (although such Member States may be fewer than one would expect).
The draft Directive does include certain advantages in terms of the rule of law. As a measure to be implemented in accordance with Articles 83(1) and 82(2) TFEU, it will be subject to the full range of enforcement mechanisms and processes that the European Commission and the Court of Justice of the EU can use. This is in contrast to the Framework Decision, which (initially) did not have the benefit of these enforcement mechanisms because it was a (former) third pillar measure. However, there may be room for debate about how beneficial these rule of law advantages are. The Directive is quite broad, and it is unclear exactly what faithful transposition of specific provisions would entail.
However, for Member States subject to the adopted Directive, enforcement will be a possibility in situations of delayed or improper transposition. Which Member States the adopted Directive will apply to is yet to be determined. Denmark, which does not take part in these initiatives, will not be on the list, but Ireland or the United Kingdom might. Before or after the measure is adopted, either Member State may decide to participate in it. The United Kingdom’s decision to opt out of prior third-pillar measures (analyzed here), which included an opt-out from the Framework Decision on Combating Terrorism, was a little strange given the UK’s emphasis on taking action in this area (at national, EU, and international levels).
Even if none of the three Member States adopt the Directive, the Framework Decision will still apply to two of them (Ireland and Denmark). Despite the differing enforcement authorities available to the European Commission and Court of Justice, there might not be much variation in the “variable geometry” in this area because the two texts are substantially similar. The Framework Decision and Directive examples show how complicated this area of EU law is becoming on a constitutional level—a complexity that is not helpful from the perspectives of either operational effectiveness or the defense of civil liberties.
Recent “international standards” in the areas of counter-terrorism finance and travel by “foreign terrorist fighters” are the primary source of new material in the Directive. One of the most important of these standards is UN Security Council resolution 2178, which was passed in 2014 to deal with the threat posed by the Islamic State, and many of its provisions can be found in the Directive. (See as well the Council of Europe’s most recent Protocol on this subject.) Articles 9 and 10, which mandate that Member States criminalize traveling abroad for terrorism as well as planning or supporting such travel, are among the most important of these initiatives. Member States must “adopt the required steps” to “punish such conduct as a criminal offense when committed intentionally.” Article 8 aims to apprehend people who may “self-radicalize” and educate themselves using internet or other resources by establishing a new crime of receiving terrorist training.
The draft Directive also includes language that might be of interest to victims of terrorism. Article 22 mandates the defense of and support for terrorism victims. The necessity to offer “emotional and psychological support, such as trauma support and counseling,” is of particular importance. It is unclear how Member States will guarantee that the services are “confidential, free of charge, and easily accessible to all victims of terrorism.” This provision would seem to entail a sizable financial commitment for Member States’ mental health services, one that is admirable in principle but may be difficult to fund in practice.
It should be noted that the structure of several clauses in the Directive, such as those defining terrorism, has changed from the Framework Decision. However, it is unclear if these syntactic modifications have any significance. In fact, it seems doubtful that Member States who have previously invested legislative time in putting the Framework Decision into practice would now consider revising their domestic laws simply to reflect the updated definition (if, indeed, the differences are insignificant).
There are some significant differences between the Framework Decision and the draft Directive. One illustration of this is Article 1(2) of the Framework Decision. The Article states that the Framework Decision “does not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.” In terms of the law’s application, this provision was always superfluous because legislation cannot supersede a Treaty provision. However, the omission of the clause from the draught Directive can be interpreted as a change in emphasis—a criticism made easier to level by the proposal document’s failure to acknowledge the admission.
Overall, the Directive expands on the ongoing counterterrorism-related limitations on the flow of money, information, and people. This restriction has defined international initiatives since September 11, 2001. Critiques of such action inevitably encounter a problem: on the one hand, it seems to limit civil freedoms throughout Europe, while on the other, its practical efficacy is unclear. Is it possible for such a law to be both harsh and ineffective? Absolutely. As with any EU policy, transposition and implementation will determine its success.
Update, March 2016: The Council has decided on its position regarding this Directive, which must now be discussed with the European Parliament. The text of this stance can be found here.
Barnard & Peers: chapter 25
JHA4: chapter II:5
Photo: 9/11 memorial, New York City
Photo credit: www.theblaze.com