B Explanatory
memorandum by Lord Tomlinson, rapporteur
1 Procedure
1. At its 1255th meeting on 15 April 2015, the Committee
of Ministers (Ministers’ Deputies) invited the Parliamentary Assembly
to provide it with an opinion on the draft Additional Protocol to
the Council of Europe Convention on the Prevention of Terrorism
(“Draft Additional Protocol”), with the request that this be done during
its part-session in April 2015; the Assembly decided to deal with
this matter under the urgent procedure provided for in Rule 51 of
its Rules of Procedure.
2. On 20 April 2015, the Assembly referred the request of the
Committee of Ministers to the Committee on Legal Affairs and Human
Rights.
3. At its meeting in Paris on 18 March 2015, the Committee on
Legal Affairs and Human Rights appointed me as rapporteur, in anticipation
of the decision taken on 20 April 2015.
2 The context
4. As noted by Mr Jacques Legendre (France, EPP/CD),
in his report on “Terrorist attacks in Paris: together for a democratic
response”,
Note nearly
5 000 young Europeans have gone to fight in Syria and in Iraq (for
the Islamic State of Iraq and the Levant, ISIL) and many of them
are coming back to Europe having acquired fighting skills. As they
pose a considerable security threat within Europe, proposals have
been made within some member States to deprive them of their European
passports, should they have another nationality.
Note
5. On 24 September 2014, the United Nations Security Council
adopted its Resolution 2178 (2014) on threats to international peace
and security caused by terrorist acts. It is aimed, in particular,
at preventing and curbing the flow of “foreign terrorist fighters”
and obliges States Parties to criminalise certain conducts which might
be related to the commission of terrorist offences, such as travelling
abroad for the purpose of committing a terrorist crime. As stated
by the United Nations High Commissioner for Human Rights, some of
the measures taken by States on the basis of this resolution might
be very problematic from the point of view of international human
rights law.
Note
6. The issue of radicalisation of foreign terrorist fighters
was examined at the 27th meeting of the Council of Europe’s Committee
of Experts on Terrorism (CODEXTER) in November 2014. At the said
meeting, CODEXTER proposed the setting up of a committee that would
draft an Additional Protocol to the Council of Europe Convention
on the Prevention of Terrorism (CETS No. 196), to address the recommendations contained
in United Nations Security Council Resolution 2178 (2014). On 22
January 2015, the Committee of Ministers adopted the terms of reference
for the Committee on Foreign Terrorist Fighters and Related Issues (COD-CTE).
Note Having held three meetings between
February and March 2015, the COD-CTE submitted the Draft Additional
Protocol to CODEXTER, which examined and adopted it at its meeting
from 8 to10 April 2015. On 10 April 2015, CODEXTER submitted the
text to the Committee of Ministers.
7. The COD-CTE was established shortly after the terrorist attacks
in Paris on 7, 8 and 9 January 2015. In his speech before the Assembly
on 29 January 2015, the Secretary General of the Council of Europe
called for a decisive, international response to the threat of terrorism,
leaving no gaps or “legal loopholes for terrorists to exploit”.
In its
Resolution 2031
(2015) “Terrorist attacks in Paris: together for a democratic
response”, adopted on 28 January 2015, the Assembly called on member
States to “ensure that a fair balance be struck between defending
freedom and security while avoiding the violation of those very
rights” and welcomed and fully supported the preparation of an additional
protocol on “foreign terrorist fighters” to the Convention on the Prevention
of Terrorism.
Note At the time when the COD-CTE was
preparing the Draft Additional Protocol, Amnesty International,
the International Commission of Jurists
Note and Open Society Justice Initiative
Note made
a number of submissions complaining about the lack of transparency
of the COD-CTE’s work, criticising the hastiness of the whole process
and the significant implications the drafting of such a text may
have for the protection of human rights. Some commentators, such
as Martin Scheinin, the former United Nations special rapporteur
on human rights and counter-terrorism (2005-2011), expressed a number
of concerns as to the usefulness and the legal precision of the
Draft Additional Protocol.
Note Moreover, in his
statement of 23 March 2015,
Note the Council of Europe Commissioner
for Human Rights recalled that restricting human rights in order
to combat terrorism is “a serious mistake and an ineffective measure
which can even help terrorists’ cause” and urged decision-makers
“to take the greatest care when drafting and adopting new anti-terrorist
measures”.
8. On several occasions, the Committee on Legal Affairs and Human
Rights has condemned all forms of terrorism. In its reports, it
has always insisted that the latter must be combated effectively
by means that fully respect human rights and the rule of law.
Note I
was myself rapporteur on “Human rights and the fight against terrorism”
a couple of years ago.
Note On the basis
of my report, in which I examined the impact of counter-terrorism
measures on human rights and presented an overview of Council of
Europe applicable standards in this context, the Assembly adopted
Resolution 1840 (2011) on 6 October 2011. The Assembly stressed therein,
inter alia, that there is no need
for a “trade-off” between human rights and effective counter-terrorist action”
(paragraph 2).
3 Comments on the
Draft Additional Protocol to the Council of Europe Convention on
the Prevention of Terrorism
3.1 General comments
9. The Draft Additional Protocol aims at supplementing
the Council of Europe Convention on the Prevention of Terrorism
(“the convention”). It would add provisions on the criminalisation
of certain acts which are related to terrorist offences: participating
in an association or group for the purpose of terrorism (Article
2), receiving training for terrorism (Article 3), travelling abroad
for the purpose of terrorism (Article 4), funding travelling abroad
for the purpose of terrorism (Article 5) and organising or otherwise
facilitating travelling abroad for the purpose of terrorism (Article
6). The Draft Additional Protocol also contains a provision on the
exchange of information between States Parties and the setting of
up a contact point available on a 24-hour, seven-days-a-week basis
(Article 7). It will be open to all signatories of the convention,
including States which are not members of the Council of Europe,
and will enter into force three months after the deposit of the
sixth instrument of ratification, acceptance or approval, including
at least four member States of the Council of Europe (Article 10,
paragraphs 1-2).
10. In their submissions concerning the Draft Additional Protocol,
Amnesty International and the International Commission of Jurists
Note focused on two important points:
the broad scope of the application of offences defined in the Draft
Additional Protocol and the unclear relationship between the convention
and the Draft Additional Protocol. As regards the first issue, it
is true that the offences defined in Articles 2-6 of the Draft Additional
Protocol refer to “terrorist offences”. While there is no commonly
agreed definition of “terrorism” or “terrorist offence” in public
international law,
Note according to Article 1.1 of the convention,
a “terrorist offence” means any of the offences defined in one of
treaties listed in its Appendix (such as the Convention for the Suppression
of Unlawful Seizure of Aircraft, signed at the Hague on 16 December
1970 or the International Convention Against the Taking of Hostages,
adopted in New York on 17 December 1973). In fact, most of these conventions
do not apply to armed conflicts and are therefore irrelevant in
the context of the ongoing armed conflicts in Syria and Iraq and
the phenomenon of foreign fighters.
Note Moreover, conduct that is normally characterised
as an act of terrorism in peacetime would also be prohibited as
a war crime under international humanitarian law. This raises additional
doubts as to the usefulness of an Additional Protocol to Convention No.
196. As noted by M. Scheinin,
Note as
regards persons travelling from Europe to conflict zones, such as
Syria or Iraq, the provisions of the Draft Additional Protocol would
be inapplicable; and even if they were applicable in principle to
such persons when they return to their own (European) countries,
their application in practice would be very difficult, as the prosecution
would need to prove their intent to commit terrorist offences upon return.
11. Without prejudging the usefulness of the Draft Additional
Protocol and the likelihood of its future application, I am convinced
that there is a need for more clarity about the scope of terrorist
offences and the application of international humanitarian law,
which are already dealt with by the provisions of the convention itself
(respectively in Articles 1 and 26, paragraphs 4 and 5). The relationship
between the Draft Additional Protocol and Convention No. 196 would
be regulated by Article 9 of the Draft Additional Protocol: “the
words and expressions used in this Protocol shall be interpreted
within the meaning of the convention. As between the Parties, all
the provisions of the convention shall apply accordingly, with the
exception of Article 9” (Article 9 of the convention refers to ancillary
offences and since Articles 2 to 6 of the Draft Additional Protocol
criminalise some of them, its application has been excluded). It
is very important to stress that Convention No. 196 applies, as
this would clarify the relationship between its application and
that of international humanitarian law (see Article 26.5 of the
convention, which excludes its application to the activities of
armed forces in an armed conflict) and the meaning of “terrorist
offence”, which is defined in Article 1 of the convention.
12. I would therefore like to propose that the second sentence
of Article 9 of the Draft Additional Protocol be rephrased as follows:
“As between the Parties, all the provisions of the Protocol shall be regarded as additional Articles to
the Convention and shall apply accordingly, with the
exception of Article 9.” (See, for example, the additional protocols
to the European Convention on Human Rights (ETS No. 5), in which
similar formulations have been used.)
3.2 Specific comments
13. The acts criminalised in the Draft Additional Protocol
are mainly of a preparatory nature in relation to terrorist acts
(for example, travelling abroad for the purpose of terrorism). Moreover,
it is also proposed to criminalise any attempt to travel abroad
for the purpose of terrorism (Article 4.3), as required by United
Nations Security Council Resolution 2178 (2014). In its submissions,
Amnesty International and the International Commission of Jurists
complained about the lack of a sufficiently direct (causal or proximate)
link with the principal criminal act (which is a terrorist offence).
They also complained about the lack of the requirement of a clear
and unequivocal intent to commit all elements of a crime.
14. The draft explanatory report to the Draft Additional Protocol
specifies that “[t]he obligation to adopt, where necessary, criminal
offences for certain conduct does not require the Parties to establish
self-standing offences to the extent that under the relevant legal
system these acts may be considered as preparatory acts to the commission
of terrorist offences or are criminalised under other provisions,
including those related to attempt” (paragraph 21). As regards Article
4.3, “[t]he offence of attempt must be established not only under but
also in accordance with the domestic law of a Party. Parties may
choose to criminalise the attempt to travel under existing provisions
as a preparatory act or an attempt to the main terrorist offence”
(paragraph 53). As regards the issue of intent, the offences defined
in Articles 2 to 6 of the Draft Additional Protocol must be committed
“intentionally” and they require a further subjective element –
either a terrorist purpose (Articles 2 to 4) or knowledge about
the terrorist purpose (Articles 5 and 6). Although I fully understand
the concerns of non-governmental organisations (NGOs) as regards
legal certainty in relation to new criminal offences, much will depend
on how States Parties implement the Protocol. In view of the variety
of national criminal legislations, some provisions of the Draft
Additional Protocol might not necessarily require the introduction
of new offences into States’ criminal codes, if the latter adequately
criminalise the preparation of a criminal offence or an attempt
to commit it. Practice will also show the problems that the prosecution
authorities might encounter in trying to prove the existence of
the intent to commit the offences defined in the Draft Additional
Protocol.
15. Bearing in mind the possible implications for the respect
of human rights of any new criminal provisions, I would like to
propose, in addition to the need to refer to the Assembly’s Opinion
in the Preamble of the text to be adopted, two additional amendments
to the text, in order to take into account the human rights concerns expressed
by various stakeholders in the process of the elaboration of this
text.
- At the end of Article
1, I would propose to add the following words: “and their obligations
under international human rights law”;
- In Article 8.1, I would propose to add after the words
“in particular”, the words “the right to a fair trial, the principle
of legal certainty,”; after the words “the Convention for the Protection
of Human Rights and Fundamental Freedoms”, the words “and its Additional
Protocols”, and after the words “the International Covenant on Civil
and Political Rights”, the words “, the Convention on the Rights
of the Child”;
16. These changes aim to strengthen the human rights clauses contained
in Articles 1 and 8.1 of the Draft Additional Protocol. Concerning
the former, a clear mention of international legal obligations concerning respect
for human rights would be needed to show States’ commitment to respect
human rights in combating terrorism.
17. As regards the latter, I propose to add a clear reference
to the right to a fair trial (as enshrined in Article 6 of the European
Convention on Human Rights) and the principle of legal certainty
(as enshrined in Article 7). The right to a fair trial, and in particular
the principle of the presumption of innocence, are of crucial importance in
the context of criminalisation of certain conducts that might lead
to committing terrorists acts, but which are not obviously linked
with such acts, such as travelling abroad. As proving the intent
to commit a terrorist offence might be very difficult for the prosecution
in such circumstances, the rights guaranteed by Article 6 of the European
Convention on Human Rights must prevail. Similarly, the principle
of legal certainty –
nulla poena sine
lege – must be stressed, given that the Additional Protocol
may oblige States Parties to change their criminal legislation (see
also the reasons invoked in paragraph 14 above). Moreover, I am
of the opinion that it is necessary to add a reference to the Additional
Protocols to the European Convention on Human Rights, which enshrine
other human rights that are of crucial importance in this context.
In particular, the introduction of the offence of “travelling abroad
for the purpose of terrorism” might put at risk the freedom of movement
and the right to leave any country, including one’s own,
Note which
are guaranteed in Article 2 of Protocol No. 4 to the European Convention
on Human Rights. Although these rights are not absolute, any restrictions
imposed on them (in the context of criminal investigation), such
as travel bans or the withdrawal of passports, should be in accordance
with the criteria set up in this provision, as interpreted by the
European Court of Human Rights. In addition, I propose to add a
reference to the United Nations Convention on the Rights of the
Child of 1990, as the phenomenon of “foreign fighters” concerns
– to a certain extent – individuals under the age of 18, whose rights
in the context of a criminal procedure need special protection.
18. Last but not least, I would like to express some additional
concerns about the respect for human rights in the context of criminalisations
foreseen in Articles 2 to 6 of the Draft Additional Protocol. The
deprivation of nationality (even if the individual in question has
other nationalities) in the context of penalising any form of contribution
to the committing of a terrorist crime raise serious concerns in
view of the right to a nationality and States’ international legal
obligation to avoid statelessness. States should always do their
utmost to provide sufficient safeguards against statelessness.
Note Moreover,
any new measure taken by States in the context of the implementation
of the Additional Protocol (if adopted) – such as instituting criminal
proceedings against an individual – should never be based solely
on the criterion of his/her ethnic origin or nationality, which
would be discriminatory.
