<<

ńňđ. 15
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>

Asia, especially in states with major US interests. Moreover, as a result of the
increasing anti-American sentiment around the world with regard to the
controversy over the Iraq occupation, the US itself is also circumspect
about over-zealousness in its foreign policy, not wanting to incur greater
opposition and more losses by being where it is not welcome.
Perhaps this could be the opportunity for greater progress in Asian
regionalism in counter-terrorism and security, especially in the light of the
proposed ASEAN Security Community (ASC) described in the Bali Concord II.
This is envisaged to bring ASEAN’s political and security cooperation to a
higher plane. In this regard, the ARF remains the main forum for regional
security dialogue. The ASC is to fully utilize the existing institutions and
mechanisms within ASEAN with a view to strengthening national and regional
capacities to counter terrorism and other transnational crimes, and will work
to ensure that the Southeast Asian region remains free of all weapons of mass
destruction. It may enable ASEAN to demonstrate a greater capacity and
responsibility of being the primary driving force of the ARF and Southeast
Asian regional security in general.39
Impetus for a Southeast Asian-led security mechanism could come from
the importance of a peaceful and stable region for continued economic
growth and prosperity. Southeast Asian nations give utmost precedence to
economic development and financial security. This emphasis can propel an
array of counter-terror initiatives.
However, such action needs a leader. Who would be the best choice to lead
such a security community? It is debatable whether this question poses a
debilitating obstacle to Southeast Asian anti-terror efforts. As has been some-
times argued, the leadership of ASEAN is not an issue as equality is greatly
stressed in ASEAN, especially by the less prosperous new members like
Cambodia, Laos, Myanmar and Vietnam (CLMV). Furthermore, the
ASEAN agenda progresses by having different states champion different
issues and proposing them at regional meetings. For example, the
Philippines is traditionally the leader on issues of civil rights, while
Malaysia and Singapore have always propounded economics. Indonesia is
now spearheading the ASEAN Security Community discussed during the 9th
ASEAN Summit in October 2003.
On the other hand, it has also been said that Southeast Asian states are too
small to have much impact and tend to be tied down by domestic concerns.
Moreover, the mutual rivalry between ASEAN states makes it difficult for any


39
For more on the ASEAN Security Community, see http://www.aseansec.org/15159.htm.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 413

one of them to assume a leadership role. If anything, ASEAN as a whole unit
may be a possible contender to influence regional security. It was declared at
the first East Asia Congress in Kuala Lumpur in June 2003 that ASEAN as a
whole has better standing than its individual states.
Resources and infrastructure are an equally pressing concern. Faced with
the need for domestic development and limited budgets, it is unlikely that
many, if any, can contribute extensively to a collective security or anti-terror
mechanism. There is the need for manpower, basic education and training,
and the establishment of civil institutions before any form of effective coop-
eration and coordination can occur. Even if Indonesia has been the erstwhile
leader of ASEAN security affairs, it is questionable whether it is in a position
to lead when the level of its own domestic unrest is high and resources are
stretched. Moreover, with the upcoming Indonesian Presidential elections, it
is uncertain that this project initiated by former President Megawati
Soekarnoputri will be continued if there is a change in leadership in the
upcoming elections. In addition, other ASEAN states may chafe at an equal’s
leadership. It would perhaps be better if an external player continues to
exercise leverage in regional security.
It is possible then that the region would be looking at a ‘multiplex’ of
players, one of which is the US. The UN is not inconsequential to Southeast
Asians. Indeed, Asia has been an arena for prominent and successful UN
operations. The Cambodian and East Timorese efforts were, in their time,
the largest in UN history. They also signalled a first by establishing protec-
torates to help reconstruction efforts in fragile states. For Asians with longer-
memories, UN approval ushered in US-led forces during the Korean War.
However, in the aftermath of the 1997–98 Asian financial crisis, states in
the region have realized their own vulnerabilities. Continued American
primacy and the importance of its markets have been the central hope for
countries seeking to increase their exports as a means to stimulate recovery.
The Asia–Pacific regional self-image of parity, equity and community has
given way to a realistic assessment of what and who matters. The increasing
fear was not of a unilateralist and overbearing America but of a self-satisfied
one that would retreat into itself, uninterested in Asia. Against this back-
ground, the post-9/11 agenda has again turned US attention outwards.
The agenda of the UN and the Bretton Woods institutions are framed, and
their operations determined, by American power. This is not news. During
the Korean War American soldiers stood behind the UN flag. China’s acces-
sion into both the UN and the WTO resulted not from consensus on the part
of existing members but from improved relations with Washington. In the
post-Cold War period, Asians witnessed the ascendance within the UN of
such issues as democracy and human rights in response to changing
American moods. In the wake of the financial crisis, many Asians expressed
concerns that the International Monetary Fund wrongly prescribed policies
SIMON S. C. TAY AND TAN HSIEN LI
414

that deepened the crisis but were unable to sway the organization from the
prescription of the so-called Washington consensus. A regional idea for an
Asian Monetary Fund was also set aside after protests from the US.
In these, as in so many other instances, global institutions have not
responded so much to the majority of member states or even to the
Security Council, but to the US. Asians, for the most part, perceive that
American policy and power is embedded in the UN and Bretton Woods
institutions, serving as multilateral facades for American imperatives.
¸
Others recognize, however, the importance of such power in upholding
norms in global institutions. In this regard the UN is at most a second-best
to the US. Most Asians are content to be involved in such institutions as a
‘hedging’ strategy, to go along when there is convergence between American
hegemony and their own interests.
What can be used to eliminate or deter terrorist groups like Jemaah
Islamiyah, the Moro Liberation National Force and al Qaeda? As evidenced
by the US offensive in Afghanistan, it is impossible to use traditional military
means to counter terrorists. Other means of combating terrorism must be
examined, especially the prevention of terrorism at the foundational stage.

IV. Radical Islam and the ‘root causes’
Many in Asia believe that thorough eradication of terrorism requires ‘root
causes’ to be addressed. Poverty, the isolation of Muslim groups because of
terrorism misconceptions, ethnicity, and an underlying sense of injustice are
among the main causes Asian commentators commonly cite. Without such
concomitant efforts, it is hard to convince Muslims in Southeast Asia, and
elsewhere, that the US is not anti-Islam.
It may be asked how something as far removed as the actual and ideological
conflict in the Middle East can affect Southeast Asian security so gravely.
Radical Islam in Southeast Asia is widely acknowledged as an import from the
Arab world with little influence in the mainstream of Southeast Asian socie-
ties. Thus many Asian governments’ anti-terror operations work on the
premise that ‘as long as the terrorists have not acquired a critical mass and
deep roots in local societies they can be isolated and hunted down if countries
of the region can marshal the will and capacity to take effective action’.40
Therefore, even if human security issues are not the real causes of terrorism,
they do provide terrorist groups with something to exploit. Hence, the


40
‘9/11: Two Years On, ASEAN Breaks Terrorism’s Deadly Lock’. Daljit Singh, senior
research fellow at the Institute of Southeast Asian Studies, Singapore, contributed the
article to the Straits Times on 11 September 2003. See http://www.iseas.edu.sg/viewpoint/
dssep03.pdf.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 415

rectification of the root causes of terrorism within Southeast Asia itself has
not been overlooked, but instead has rightly been given an increasing focus.
This is especially true of Southeast Asia where there are constantly growing
links with international militant Islamic terrorist groups. The Abu Sayyaf and
Moro Islamic Liberation Front (MILF) in the Philippines have received
funding from al Qaeda, while other Islamic fundamentalists allegedly linked
to Osama bin Laden have infiltrated Muslim non-government organizations
and are preachers in mosques, teaching that it is the duty of all good Muslims
to fight for all oppressed Muslims worldwide and to become syahids (mar-
tyrs) by dying for the cause.41 With the transfer of Arab Islamic ideology,
larger numbers of Southeast Asian Muslims are identifying with the cause of
the Arab Muslims and the Islamic ‘brotherhood’ call to jihad. Anger is
directed at the Israel–Palestine conflict, the occupation of Iraq and the recent
Abu Ghraib mistreatment of Iraqi prisoners, especially in the context of the
apparent hypocrisy of the US in its continued exhortation to spread its
democratic and capitalist ideals worldwide.
Southeast Asia therefore cannot avoid the security implications of the
worldwide radicalization of Islam and the emergence of post-modern terror-
ism. The long-term solution to the problem of Islamic extremist militancy in
Southeast Asia lies with dealing with its fundamental causes, which has at its
root socio-economic issues and grievances.
Even if some terrorists are from the educated middle class, it is undeniable that
the bulk of fundamentalist support comes from those who are poor and dispos-
sessed. Eradication of poverty is a near-impossible task with regional resources
constricted by competing concerns of national development like housing, civil
institutions and government and education. Constructing a hierarchy to which
resources may be allocated is fraught with disagreement. Even if the international
community were to offer aid, developmental issues are primarily the duty of the
state. States wishing to develop must agree to abide by the international financial
institutions’ terms in the restructuring and development of their economies and
industries as the concomitant duty in return for the money.
In addition to direct counter-terrorist operations like intelligence gather-
ing, infiltration of terrorist cells and the use of preventive detention, an
ideological strategy to minimize the impact of fundamentalist teaching
must be formulated, for example, through the promotion of moderate theol-
ogy and encouraging debate within Islam.42


41
See Senior Minister Lee Kuan Yew’s interview with the Far Eastern Economic Review on
the Jemaah Islamiyah militant attacks, reproduced at the Singapore Ministry of Home
Affairs press releases, at http://www2.mha.gov.sg/mha/.
42
‘The emergence of post-modern terrorism and its implications for Southeast Asia’,
Andrew Tan, Asst. Professor at the Institute of Defence and Strategic Studies (IDSS),
Perspectives-IDSS, at http://www.ntu.edu.sg/idss/Perspective/research_050107.htm.
SIMON S. C. TAY AND TAN HSIEN LI
416

This could be the right time to promote moderate Islamic ideologies. The
Muslim populations of Malaysia and Indonesia appear to be strongly sup-
portive of moderate Islam. The results of Malaysia’s eleventh General
Election have shown that moderate Islam is the people’s democratic choice.
Strong support was given to Prime Minister Abdullah Badawi’s vision of a
modern, moderate and progressive Islam. He defeated the main Islamist
political party, the Parti Islam Se-Malaysia (PAS), which promised Islamic
law to the states in which it won control of local government. PAS garnered
less than 16 per cent of the vote nationwide and only retained six of the
twenty-seven seats it held in the previous Parliament.43
It is significant that amid the increasing Islamic fundamentalism globally,
the Malaysian PAS is perhaps the first Islamic political party to be so badly
defeated. Such democratic victories within Muslim communities are all the
more legitimate when Islamic parties are part of the political process, as they
are in Malaysia.
In Indonesia, much the same is expected to occur in the country’s first
direct presidential election in the third quarter of 2004. Already the big
established nationalist-secular parties have won the most seats, but newer
parties have made gains on an anti-corruption agenda. Indonesia’s once
long-ruling Golkar Party captured the most votes in the April election with
22 per cent. President Megawati Sukarnoputri’s Indonesian Democratic
Party of Struggle came in second with slightly less than 19 per cent.44 A recent
survey by political scientists Saiful Mujani and R. William Liddle found that
while more than 70 per cent of Indonesians supported the concept of Sharia
‘in the abstract’, when asked about specific aspects of Islamic law, such as
requiring women to wear the veil or banning women from politics, this
support dropped off dramatically.45
It has been propounded widely that education and the closer scrutiny of
madrasahs and their curricula help in combating terrorism at the founda-
tional levels. Measures such as these have been implemented in Singapore,
where the government is strongly promoting moderate Islam and seeking the
help of the Islamic Council in doing so. For most Singaporean Muslims,
‘moderate’ beliefs are held and such measures have been quite uncontrover-
sial. For the rest of the Southeast Asian region, the converse would probably
be true.


43
‘A template for moderate Islam in Southeast Asia?’, 31 March 2004; Lawrence Pintak,
Howard R. Marsh visiting professor of journalism at the University of Michigan con-
tributed this commentary to the Daily Star, at http://www.lebanonwire.com/0403/
04033115DS.asp.
44
‘Golkar Wins Indonesian Parliamentary Elections’, 5 May 2004, Epoch Times, at http://
english.epochtimes.com/news/4-5-5/21270.html.
45
Above note 43.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 417

When Indonesian President Megawati Sukarnoputri ordered a review of the
teaching of religion in Indonesian schools on 18 May 2004, stating that the
current modes of education encouraged fundamentalism, her initiatives were
met with a lot of opposition by many Muslim scholars and leaders, who dismiss
views that pesantrens (Islamic boarding schools) are breeding grounds for
Islamic militancy, arguing that these pesantrens have been stalwarts of Islamic
education in Indonesia for decades and generally produce students with tolerant
religious views.46 Given that such schemes are highly sensitive and could even be
perceived as contrived and perhaps even ‘un-Islamic’ by supporters of moderate
Islam who prefer taking a less constructed route based on the traditional
Southeast Asian type of moderate interpretation and practice of Islam, it is
uncertain how the ideological arm of counter-terrorism is to be carried out
and what degree of success it will be able to achieve.
It is also questionable what role, if any, foreign states, most notably the US,
can play in this process. It is to be surmised that the US would be more than
willing to contribute to this cause. However, such altruism could easily be
perceived as indoctrination and imperialism. What should the US then do?
Perhaps in such matters, the US should recognize that it cannot lead the
ideological battle and as such refrain from any overt action. The US seem to
have exercised self-restraint, correctly in our view, when it congratulated
Malaysia’s PM Abdullah Badawi on his election victory on 23 March 2004.
It prudently did not play up the implicit message of support for moderate
Islam in Malaysia’s election and the forthcoming elections in Indonesia.
Paradoxically, in this area, inaction on the part of the US could be a more
successful form of ‘action’ for the US agenda, advancing the forces of demo-
cratic change in these countries. In Indonesia but also increasingly in other
Southeast Asian nations, being too closely identified with the US in its war on
terrorism (with all the attendant perceptions of that war) can be detrimental
to their standing in political domestic opinion.
Nevertheless, other ASEAN countries must also realize their own limita-
tions. If the state conducts intensive ‘moderate Islamicization’, the risk of the
ideological campaign appearing contrived and even ‘un-Islamic’ runs very
high and there could be a backlash. This has already been pointed out by then
Singapore PM Goh, stating simply that the ‘ideological struggle is far more
complex . . . because it engages not just reason but religious faith . . . non-
Muslims have no locus standi to engage in this struggle for the soul of Islam. It
is a matter for Muslims to settle among themselves’. He also said that it was
fortunate that the Singapore Muslim community and Islamic leaders trusted
the Government sufficiently to be willing to offer their help; they understood


46
‘Religious education review ordered’, 18 May 2004, Jakarta Post, at http://www.the
jakartapost.com/yesterdaydetail.asp?fileidÂĽ20040518.A04.
SIMON S. C. TAY AND TAN HSIEN LI
418

that unless they acted, all Muslims could have been tarred by a few. Hence, a
number of Islamic religious teachers have already volunteered their services to
our security authorities to undertake religious counseling and rehabilitation
of the Jemaah Islamiyah (JI) detainees. While the government welcomed their
help, it acknowledged that as a secular Government, it could not direct
religious teachers as to what they must preach. Religious leaders regarded as
too pro-government would not be credible.47
While the US should not spearhead the ideological campaign, it must, in its
interaction with the international Muslim community, recognize the differ-
ences among separate Muslim populations. As PM Goh pointed out,
even though the RAND report released in March 2004 tried to understand
Muslims better, its categorization of Muslims into fundamentalists, tradition-
alists, modernists and secularists, fails to recognise what all Muslims share in
common. There is the real presence of a vibrant Islamic ummah (global Islamic
community) but this ummah is not monolithic. The identification that all
Muslims feel for events affecting other Muslims has become real and visibly
stronger and more widespread since global communications have facilitated
the missionary activities of the Arab states, especially Saudi Arabia preaching
and spreading Wahhabism with its oil wealth.48
Perhaps even more importantly the international community as well as the
media should expressly recognize that much of the Muslim world rejects
extremism. Instead of constantly exhorting the global Muslim community to
embrace moderate Islam, steps taken by the community should be duly
acknowledged. When Pakistani President Pervez Musharraf told students to
reject extremism at a national student convention in May 2004, and when
Dr Muhammad Sayyid Tantawi, an ulama of Islam and professor of Egypt’s
Al-Azhar University, spoke out against Islamic extremists at the Conference
of the Supreme Council for Islamic Affairs during April 2004 in Cairo, both
incidents were overlooked by the international community and media.
Hence, it is important that the US and the international community recogn-
ize these efforts and avoid over-generalizing the Muslim world.49

V. Cooperation and sovereignty: the needs
and limits in Southeast Asia
From the many declarations, it would seem that ASEAN member states are
intent on cooperating with each other, with the USA and even indeed with
other states outside the region on anti-terrorism efforts. Yet from this chapter’s
analysis of the American actions and regional reactions to date, it is also


47
Speech by PM Goh to the Council of Foreign Relations, Washington DC, above note 37.
48
Ibid. 49 ‘When voices of moderation go unheard’, 8 June 2004, Straits Times.
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 419

clear that there are many impediments to cooperation or even a contestation
about what really needs to be done. There is a divide between the official
policies made by the ASEAN member states that have largely supported the
USA or limited their differences, and public opinion, which has increasingly
turned against America. This creates what may be called a democratic deficit in
the region between governments and their citizens. It also reveals something of
a paradox in that American policies to date have been accepted by ASEAN
member states at one level and yet are also quizzed or even opposed at another
level.
One way of understanding this paradox is to examine the type of coopera-
tion that is needed for anti-terrorism efforts and compare that to the ideas of
sovereignty that prevail, both internationally and within the region. Inter-
state cooperation in Southeast Asia is not new. ASEAN was formed in 1967
and has, in its thirty plus years of existence, undertaken cooperation in
diverse fields including issues of geopolitics in challenging the Vietnamese
intervention in Cambodia, trade and economic cooperation with the ASEAN
Free Trade Area (AFTA) and ASEAN Economic Community, and environ-
mental protection, including efforts to address the recurring Indonesian fires
and haze. The different areas of cooperation however intrude – in different
ways and to different degrees – upon what would otherwise have been
considered the domestic jurisdiction of the sovereign states.
In trade issues, for example, AFTA was largely an exercise in getting states
to cut and limit the tariffs imposed on different items. This is a minimal
intrusion on state sovereignty, as tariffs may be viewed as an external gate that
can be altered with little impact on domestic policy. In the case of Cambodia,
the cooperation among ASEAN member states (which did not include either
Cambodia or Vietnam at the time) largely involved their foreign policies and
efforts at the United Nations. There was no cooperation in terms of military
efforts, or in dealing with refugees or other aspects of the situation. In
contrast, the ASEAN Economic Community seeks to integrate the markets
of the ASEAN member states across eleven product sectors. This involves not
just tariffs, but internal policies and practices such as non-tariff barriers,
competition policy and market access. If ASEAN is to successfully cooperate
in addressing the issue of the Indonesian fires and resulting regional haze, this
must necessarily impact on Indonesian law and policy internally; and indeed
it is for this reason that the regional treaty negotiated by ASEAN may be
necessary but insufficient in itself.
Terrorism is an issue that deeply challenges cooperation between states,
especially those in Southeast Asia. While the USA has led military interven-
tions in Afghanistan and Iraq akin to conventional warfare, much more of the
effective cooperation against terrorism involves non- military measures, such
as the sharing of intelligence, border control measures, effective monitoring
of illicit bank and financial transactions – measures that the ASEAN member
SIMON S. C. TAY AND TAN HSIEN LI
420

states have agreed upon. While tariffs and military interventions deal with
different actions between states, these types of anti-terrorism measures have
much more bite within states. Many more different and diverse units of the
state are involved too, ranging from immigration and customs to financial
authorities, police and intelligence agencies. The nature of anti-terrorist
measures and of the agencies involved grows even more diverse and complex
if ‘root causes’ of poverty, exclusion and injustice are addressed, as many
Asians feel ought to be the case.
Seeing anti-terrorist measures in this way warns us that declarations and
treaties such as those undertaken by ASEAN and surveyed in the first part of
this chapter are only the beginning, even if they are sincerely intended and
pursued. Cooperation on anti-terrorism is, in many cases, deeply intrusive on
what states would otherwise consider matters within their domestic jurisdic-
tion. This characteristic of cooperation is additionally challenged in the
ASEAN practice of sovereignty. As noted by many observers, the ASEAN
member states and ASEAN as a whole propound and practice a principle of
‘non-intervention’ that goes beyond the usual international standard. In the
international community, non-intervention is largely a shield against the
illegitimate use of force or threat of force. Within ASEAN, there are often
cases in which no more than a public comment is made, against which the
protest of ‘interference’ or ‘intervention’ is raised.
The reasons chiefly relate to the nature of these states. These are largely
recent, post-colonial creations and have multiple and diverse characteristics
of race, language, religion and ethnicity. The result is an ASEAN that is
avowedly an association, and not a union like the European Union. The
institutional capacity and purposes of ASEAN are measured out accordingly,
with a declared distrust for a larger regional bureaucracy and against ‘lega-
listic’, binding approaches to cooperation. Changes have been made to enable
and enhance cooperation within ASEAN in a number of fields, especially in
economic affairs. But there has been little change in terms of the ASEAN
approach to political and security issues. Suggestions for ‘flexible engage-
ment’, while appealing to those of liberal persuasion, have not been adopted
by ASEAN as a whole.
Thus, while Indonesia suffers from a long-standing and often violent
secessionist movement in Aceh, Thailand from a similar problem in its
southern provinces and the Philippines from separatists in Mindanao, there
is no concerted and open cooperation on these issues among ASEAN as a
whole. Bilateral understandings with the US have been reached in the case of
the Philippines and perhaps Aceh. Quieter but no less help has been given in
some cases by an ASEAN neighbour. But these have not been issues for
ASEAN. The shield of sovereignty is instead held up against ‘interference’.
The most recent example of this is that of Thailand’s response to the problems
in its southern provinces, where it first decried Malaysia’s (alleged) failure to
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 421

control their shared border, and then seemed to refuse to seek deeper
cooperation with Malaysia.
With this norm and practice of ‘non intervention’, the prospects of effec-
tive cooperation against terrorism in Southeast Asia are pressured not only
by capacity and political will; they are running up against strongly held norms
of state practice. Even when there may be some recognition of the needs of
cooperation, there are still quite narrow limits to that cooperation because of
concerns over sovereignty.



VI. The context of principles and concepts: human
rights and world order
The promises and limits of cooperation in Southeast Asia may also be seen
in the context of principles of international law or of conceptions of the
international community. Two principles or concepts that may be especially
of interest are, first, the protection and promotion of human rights; and,
second, principles about power, justice and world order.
Human rights has assumed considerable prominence in world politics and
international law. While many limitations remain, there has been considerable
progress by the modern human rights movement since the end of World War II.
There has been the growth of a body of treaties accepted by very many of the
states in the world. Even states which are not legally bound by ratification often
face the political need to respond. There has been the growth of institutions that
can also bring these treaties and norms to life, such as the ad hoc tribunals on
crimes in the former Yugoslavia and the fledgling International Criminal Court.
Most controversially perhaps there has been the first modern war waged in the
ostensible defence of human rights: the bombing of Belgrade by NATO forces, in
response to human rights violations in Kosovo. In many ways, in the post-Cold
War world, democracy and human rights have emerged as the most important
legitimating factors for governments.
However, the post-9/11 American-led war against terrorism has had an
ambivalent impact on the role of human rights. Very often, the Bush admin-
istration has made the protection of human rights and the promotion of
democracy part of its legitimacy in taking action. This is strongly evident in
the US justifications for intervention in Iraq. This emphasis moves beyond
the more legalistic approaches of the UK and others who have instead
emphasized the UN Security Resolution 1441 and the recommencement of
the long dormant authorization for the use of force in the first Gulf War, a
decade before. There has been notable rhetoric and even academic opinion in
favour of using the might of the US in the service of rights, and of bringing
democracy to the Middle East.
SIMON S. C. TAY AND TAN HSIEN LI
422

On the other hand, however, human rights have suffered in the post-9/11
war on terrorism in a number of ways. First and perhaps foremost has been
the action of the US administration in refusing to give full recognition and
protection to Iraqi captives as prisoners of war. This has exposed them to
legal uncertainties in their captivity, whether in Guantanamo Bay or in
various prisons across Iraq. The recent exposure of gross human rights
violations against Iraqi prisoners by their American captors must be seen in
the context of this systemic evasion of existing international norms and a
slippage of legitimacy. A second post-9/11 weakening of human rights protec-
tions has been felt domestically in the USA, with the Patriot Act and other
measures that erode (to many people) the extent of civil liberties and protections
that US citizens, residents and even visitors to the USA have usually enjoyed. A
third weakening of the legitimating role of human rights in the post-9/11 efforts
is highly relevant to the states of Southeast Asia. This is that, when compared to
its fervour in the post-Cold War flush, the US appears to be less strongly
interested and committed to human rights in other countries where their
governments can be of help and support to its war on terrorism. A trade-off
has been struck between human rights beliefs and post-9/11 exigencies. This has
impacted on US relations with Indonesia and the Philippines.
The post-9/11 efforts against terrorism also may be seen in the context of
the international principles and concepts concerning justice, power and
world order. For while the fact of American primacy as the only superpower
left in the world preceded 9/11, there has been a much stronger purpose and
drive to the American use of that primacy, post-9/11, and much more
suspicion and resistance to it as well.


VII. Conclusion: cooperation as realpolitik
or as principle?


‘The United States possesses unprecedented and unequalled strength and
influence in the world. Sustained by faith in the principles of liberty, and
the value of a free society . . . the great strength of this nation must be used
to promote a balance of power that favors freedom.’
US President George W. Bush, the National Security Strategy, September 2002

Southeast Asian states have offered their cooperation to the US-led war on
terrorism. They have done so bilaterally with the US as well as amongst
themselves, sometimes acting as ASEAN and sometimes in ad hoc arrange-
ments. They have done some of this with a sense of American expectation and
pressure. Relations between the US and Southeast Asia cannot be seen as an
equation of growing equality or even a partnership. Southeast Asia is instead
another region that must deal with the US on its terms and in response to the
SOUTHEAST ASIAN COOPERATION ON ANTI-TERRORISM 423

agenda that Americans set, post-9/11. There is a growing sentiment in Asia
and elsewhere of resistance and even anger against America. There may be no
immediate penalty for the US, given its primacy. Yet it is striking that the
declared values of the country, and the goodwill and sympathy that many in
the world felt immediately after 9/11, have not led to a greater and sustained
support for the US in Asia or indeed the wider world. This has considerable
implications for US-Southeast Asian relations.
ASEAN and other Asian countries are right to seek to engage the US on the
9/11 agenda. American inattention or resentment can otherwise have a
negative impact. However, they can and should make stronger efforts to
increase the terms of this engagement. America can and should be more
multilateral in both process and substance. Univalent attention to narrow
security and military concerns should be broadened with an agenda that
considers the needs for peace-building, sustainable development and
prosperity.
The efforts in ASEAN and ASEAN Ăľ 3 regionalism serve best to help the
states in Asia address what issues they can, among themselves. They may also
serve as an occasional platform for dialogue and consultation with America.
In the short to medium term, there is little prospect that they will displace the
primary importance of bilateral relations with America. The hub-and-spoke
arrangement of relations will continue between the different, disunited Asian
states at the rim. For the longer term, however, there is a growing need for the
dialogue to grow to include wider issues such as world order and values like
human rights.
The Bush administration has referred to many traditions and values in
America’s thinking about the world. These include the need to ‘champion
aspirations of human dignity’, ‘ignite a new era of global economic growth
through free markets’, and ‘expand the circle of development by opening
societies and building the infrastructure of democracy’.50 If these values are
pursued alongside the global war against terrorism, American leadership in
the world would be much more acceptable to many more people. It remains
to be seen if the Bush administration, in its second term, will live up to these
declared aims. If it does, it will find states in Asia who are willing to cooperate.
It is not an end to the American presence that most in Asia desire. Indeed,
American presence is what they have known, lived with and largely prospered
from. The overarching wish of Asian states is instead that American primacy
continues to provide stability and be generally benevolent for all, even in the
face of post-9/11 American exigencies and imperatives.
Cooperation must therefore move from being based on a sense of real-
politik and obeisance to American power. If it does not, there will always be

50
‘The National Security Strategy of the United States of America’, Titles of sections II, VI
and VII respectively, at http://www.whitehouse.gov/nsc/nss.html.
SIMON S. C. TAY AND TAN HSIEN LI
424

limits to the extent of that cooperation in meeting the complex challenges of
terrorism, and growing resistance to American dictates. Efforts to help grow
trust and common perspectives must instead be increased. These may help
assure the region that American might is indeed used for what, collectively, is
thought to be right. A reciprocal result would be that the US might be better
able to find states that would more genuinely and fully support their efforts.
Principles of international law and the community of nations must guide and
direct cooperation in directions that many more can accept and support.
20

Anti-terrorism law and policy: the case of the
European Union
¨
JORG MONAR


Introduction
Since the 9/11 terrorist attacks the European Union (EU) has increasingly emerged
as an actor in its own right in the fight against international terrorism, providing a
framework for collective action both inside the EU and on the international level.
Based on the Treaty of Amsterdam in 1999, the scope of EU anti-terrorism law and
policy has expanded significantly since 2001, and the Madrid terrorist attacks of
11 March 2004 have given a new impetus to this process.
This chapter analyses the role of the EU in the fight against international
terrorism by first looking at the legal, structural and political bases of the EU,
and then by analyzing the Union’s response to 9/11 and the 11 March 2004
attacks. It will provide an overall evaluation of the Union’s potential and
limits as a political and legal actor in this field, taking into account reform
proposals of the European Convention’s Draft Constitution for the EU.


I. The bases for EU action
A. Legal bases
At the time of 9/11 EU Member States could already look back to a quarter of
a century of cooperation against terrorism. The TREVI cooperation, which
had come into operation in 1976 and can be regarded as the ancestor of the
‘third pillar’ of the 1990s, had originally focused entirely on the cross-border
fight against the terrorist groups which were trying to destabilize several of
the EC Member States at that time, especially Germany, Italy and the UK. Yet
TREVI had remained a loose inter-governmental structure without legal
bases, competences, permanent institutions and financial means, largely
limited to information exchange. It was only with the introduction of Title
VI TEU through the Treaty of Maastricht (1993) that EU action was for the
first time provided with a legal basis, a basis which was then strengthened and
expanded by the Treaty of Amsterdam which entered into force in May 1999.
At the level of fundamental treaty objectives, the most important provision
is Article 2 TEU which provides for the maintenance and the development of

425
¨
JORG MONAR
426

the Union as an ‘area of freedom, security and justice’. That internal security
lies at the core of this objective is made clear by the major emphasis placed in
Article 29 TEU on providing ‘citizens with a high level of safety’ within the
Union. This objective is repeated in almost identical terms in Article 61(e)
TEC. The Union has therefore been given an explicit mandate as a provider
of internal security – which in itself is a major innovation. Article 29, second
paragraph, specifically mentions terrorism as a form of crime which should
be targeted ‘in particular’. Although there is no explicit mention of terrorism
in the provisions on the ‘common foreign and security policy’ (CFSP) in Title
V TEU, Article 11(1), second sub-paragraph, defines the strengthening of ‘the
security of the Union in all ways’ as one of the central objectives of the CFSP.
This is broad enough to include international action against security threats
posed by global terrorism.
At the level of the specific competences to act, the most extensive set of
provisions is to be found under Title VI TEU, the ‘third pillar’ as reformed by
the Treaty of Amsterdam. Of primary importance are the following:
police cooperation between the Member States in the prevention, detection

and investigation of criminal offences, data collection, joint training and the
common evaluation of investigative techniques (Article 30(1) TEU),
the further development of Europol, including the support of specific inves-

tigative actions, the initiation and coordination of investigations, and the
promotion of liaison arrangements between prosecuting/investigating offi-
cials (Article 30(2) TEU),
the facilitation and acceleration of cooperation between judicial authorities

and competent ministries, including the facilitation of extradition, ensuring
the compatibility of applicable rules and the prevention of conflicts of
jurisdiction (Article 31(a)–(d) TEU),
the progressive adoption of measures establishing minimum rules relating to

the constituent elements of criminal acts (including terrorism) and penalties,
(Article 31(e) TEU),
the possibility of concluding agreements with third countries or inter-

national organizations over matters falling under Title VI TEU (Article 38
TEU in conjunction with Article 24 TEU).1
Although all these competences to act are of a non-exclusive nature and
remain in the inter-governmental sphere of Title VI TEU, they nevertheless
offer substantial possibilities for increased cooperation between national
police and judicial authorities, a stronger role for Europol and a harmoniza-
tion of national penal laws.


1
Article 24 TEU governs the negotiation and conclusion of international agreements in the
CFSP context.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 427

Two of the communitarized areas of Title IV TEC are of relevance to
terrorism:
standards and procedures to be followed by Member States in carrying out

checks on persons at external borders (Article 62(2)(a) TEC), and
 rules on visas for intended stays of no more than three months, including the
list of third countries whose nationals must be in possession of visas when
crossing external borders (Article 62(2)(b) TEC).
The legal instruments to be used depend on the legal basis. In the commu-
nitarized areas of Title IV TEC, well-established EC instruments, primarily
regulations and directives, apply. The primary instruments in the inter-
governmental domain of Title VI TEU are ‘decisions’ and ‘framework deci-
sions’. The latter are comparable in their legal effects to EC regulations and
directives, the only major difference being that they do not have direct effect.2
The availability of decisions and framework decisions as legal instruments
represents a significant improvement to the situation before the Treaty of
Amsterdam when ‘soft law’ instruments were an often used option for the
Member States.3 The Council can also agree on ‘conventions’.4 These, how-
ever, are subject to ratification by the Member States, a procedure which can
take years and makes ‘conventions’ a very cumbersome instrument to use. All
these instruments are open to judicial review by the European Court of
Justice (ECJ), but in the Title VI TEU domain only national courts of last
instance can seek a preliminary ruling from the Court. The Court has no
jurisdiction over the validity or proportionality of law enforcement measures
by national authorities and where there is a dispute regarding the interpreta-
tion of an EU measure, the Court can only come in after the Council has failed
to resolve the issue within six months.5
Because of the ‘cross-pillar’ dimension of the threats posed by global
terrorism, two further legal bases for EU action need to be mentioned. One
is the residual power of Article 308 TEC which can be used for attaining an
objective of the Treaty even if the Treaty does not provide for explicit powers.
As a high level of internal security is now clearly an objective also of the EC,
Treaty Article 308 TEC can also be used as a basis for common action. The
other legal basis to be mentioned concerns the CFSP. The broadness of the
CFSP aim ‘to strengthen the security of the Union in all ways’ (Article 11
TEU) provides sufficient justification not only for the use of specific CFSP
instruments listed in Article 12 TEU (e.g., common strategies, joint actions)
and Article 17(2) TEU (rescue, peace-keeping and crisis management tasks),

2
See Article 34(2)(b) and (c) TEU.
3
On the legal instruments, see Steve Peers, EU Justice and Home Affairs Law (Harlow,
Longman 2000), 49–50.
4
Article 34(2)d) TEU. 5 Article 35 TEU.
¨
JORG MONAR
428

but also for the use of external economic sanctions via Articles 301 TEC and
Article 60 TEC.
However, the instruments mentioned here, with few and rather marginal
exceptions,6 are subject to a major constraint – the need for a unanimous
decision in the Council.

B. Structural bases
As a result of the rapid development of EU justice and home affairs in the
1990s the structural bases for the fight against terrorism at EU level have
improved considerably. The loose inter-governmental structures of TREVI
have been fully integrated into the Council structure, with the Justice and
Home Affairs Council (of Ministers) (JHA Council) at its top. This Council
brings together representatives of the national ministries of the interior and
of justice and the responsible Member of the European Commission. The
Council deals with all anti-terrorism measures of a justice and home affairs
nature. CFSP related aspects are left to the General Affairs Council which
regroups the Foreign Ministers. General coordination of the decision-making
process below the ministerial level is formally the task of the Committee of
Permanent representatives (COREPER). Yet in the justice and home affairs
domain COREPER normally plays an active role only when there are diffi-
culties in reaching an agreement in the specialized senior Council commit-
tees, or if there are cross-cutting issues such as inter-pillar coordination, or
the use of the EC budget. In practice, therefore, a substantial role in preparing
ministerial decisions on anti-terrorism measures is played by the Article 36
Committee (CATS) which regroups senior national and Commission offi-
cials dealing with judicial and police cooperation. CATS also gives instruc-
tions to the Council Working Party on Terrorism (WPT) which regroups
national and European Commission desk officers dealing with anti-terrorism
measures in the ‘third pillar’ context. While WPT is in charge of working out
details of anti-terrorism measures, issues more specifically relating to judicial
cooperation and police cooperation are discussed and negotiated in other
specialized Council working parties.
In the CFSP context, there is a different set of decision-making bodies which
ranges from the General Affairs Council at the? to the Counter-Terrorism
Working Party (COTER) which deals with the details of anti-terrorism measures
in foreign and security policy. This separation of decision-making may not
appear optimal, but it mirrors a similar separation between the justice and
home affairs, and the foreign and security policy domains, in the national
administrations.


6
Such as visa policy measures (see Article 67(3) TEC).
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 429

Since 1999, when its non-exclusive right of initiative was extended to
all justice and home affairs areas, the European Commission has set up a
Directorate-General of ‘Justice and Home Affairs’. Initially the Commission’s
role was hampered both by a lack of personnel and a relatively cautious
political strategy in this domain. The Prodi Commission, however, has also
adopted a much more proactive role in justice and home affairs than its
predecessor, with Commissioner Antonio Vitorino opting for an ambitious
agenda and an extensive use of the Commission’s right of initiative, although
its non-exclusive nature and the unanimity requirement continue to limit the
Commission’s political weight in the decision-making process.
The European Parliament only needs to be consulted on legally binding
acts in justice and home affairs, and has no blocking or amending powers.
Europol is clearly the most significant EU institution. In 1999 – as a result of
a strong Spanish insistence – its remit was extended to the fight against
international terrorism. Yet its current role is limited to the collection,
transmission and analysis of data provided by national police forces through
national contact units. Europol does not enjoy any operational powers, and
even the supply of data from the national sources has tended to vary con-
siderably from one Member State to another. Nevertheless, it is the only
permanent central police structure of the EU with a substantial infrastruc-
ture. Europol must clearly be regarded as a major EU resource in the fight
against terrorism. The ‘Police Chiefs Task Force’ (PCTF) was established in
2000 and is intended to facilitate – in cooperation with Europol – the
exchange of experiences, common evaluations and the planning of common
operations in the fight against cross-border crime.7 Unlike Europol, however,
PCTF is not an institution with legal competences and a permanent infra-
structure, but a high level coordination group which meets at least once per
presidency with changing priorities.
The European Police College was established by a Council Decision of
December 2000. It has the task of providing training courses for senior law
enforcement officers in dealing with cross-border crime, including terrorism,
with a focus on the different national police systems and structures of other
Member States and Europol, and international policing instruments and
methods. The College currently functions only as a network of national
training institutions, with a small and under-resourced Secretariat.8
In the area of judicial cooperation, the most important structure is the
newly established cross-border prosecution agency Eurojust which was fully
established in April 2003 following the adoption of the final Council Decision
of 28 February 2002.9 Eurojust is in many respects the judicial counterpart to
Europol. It facilitates cooperation between national prosecution authorities,

7
¨
See Leo Schuster, ‘Europaisierung der Polizeiarbeit’, Kriminalistik 2000, 74–6.
8
Council document No. 5136/04. 9 OJL 63/1 of 6.3.2002.
¨
JORG MONAR
430

including the speeding up of legal assistance and extradition, support for the
coordination of parallel prosecution operations in several Member States and
information exchange. It does not enjoy any operational powers. Yet Eurojust
has been given a broad mandate covering cross-border crimes, including
terrorism, and can ask competent authorities of the Member States con-
cerned to consider the launching of investigations or prosecution of specific
acts, or to set up joint investigation teams.

C. Political bases
Even before 9/11, there was a consensus among the Member States that
international terrorism had to be regarded as a major challenge to the
democratic societies of the European Union. In the 1970s, cooperation
among the Member States had actually started with cooperation against
terrorism in the TREVI context. In the 1990s, at the informal Council
meeting in La Gomera on 14 October 1995, the ministers agreed on the
‘Declaration of La Gomera’, which was subsequently adopted by the
Madrid European Council of December 1995. It identified terrorism as a
fundamental threat to democracy, human rights and economic and social
development which could not be countered by national measures alone. It
emphasized the need for common action.10 Since the mid-1990s, there has
also been a growing awareness in the EU of new forms of Islamic terrorism
marked by increased ideological radicalism, more extensive international
networks and unprecedented logistical capabilities. France, the object of a
series of bloody terrorist attacks in 1995, has been at the forefront, monitor-
ing the activities of radical Islamic groups and warning about terrorist threats
posed by them.11
Yet there are at least four factors which make the political consensus
amongst the Member States slightly less homogeneous than the official
declarations suggest:
1. Differences in national experiences with terrorism: threat perceptions vary
widely between Member States which have been engaged in a protracted
fight against terrorism – such as France, Spain and the United Kingdom –
and others which have experienced only a temporary, or even hardly any,
terrorist threat. This makes it more difficult for the Council to arrive at
common priorities and programmes of action.
2. Variation in national capabilities: specialized forces, organisational struc-
tures, training and equipment vary considerably between the Member


10
Council document No. Press 00400/95, Annex III.
11
´`
See Therese Delpech, ‘Le terrorisme international et l’Europe’, Cahiers de Chaillot no. 56
´ ´ ´
(Paris, Institut d’Etudes de Securite, 2002), 8–10.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 431

States. Whereas some Member States, such as the UK, have well-established
integrated anti-terror structures which cut across the boundaries between
ministries (interior and defence) and involve effectively the police, the
armed forces and intelligence services, others have not gone beyond small
investigation and operational units. This is often a cause of frustration for
those involved in cooperative efforts.
3. The emergence of informal, bilateral and multilateral cooperation relation-
ships: these often involve non-EU countries such as the US. Law enforce-
ment authorities in the Member States still tend to prefer such ‘proven’
working relationships to the often cumbersome ‘new’ cooperation struc-
tures involving all of the twenty-five Member States. This also applies to the
sharing of sensitive information.
4. Diverging political and legal positions: there was conflict, for instance,
between Spain and Belgium in the 1990s over the treatment of suspected
ETA terrorists as asylum seekers on Belgian territory. Major differences have
also appeared as regards acts of violence committed by Palestinians, and in
relation to initial attempts by the Italian Berlusconi government – in the
context of the riots on the occasion of the G-8 summit in Genoa – to classify
certain violent demonstrators as terrorists.
Overall, one can assume a high degree of consensus amongst the Member
States as to the need for a common front against international terrorism, but
when it comes to deciding on common action, these differences remain.

II. EU responses to the 11 September 2001 attacks12
The unprecedented terrorist attacks of 9/11 presented the EU with both an
internal and external challenge. It had to provide an effective response in
terms of internal security, which meant primarily action in the context of the
Union’s ‘third pillar’, backed up by some measures in the ‘first pillar’ context.
But the attacks also required a parallel response on the external security side,
which meant primarily action in the context of the ‘second’ (CFSP) pillar.
Taking into account the inevitable difficulties of consensus building
among the (then) fifteen governments, the initial reaction by the EU was
both quick and substantial: a forceful text was agreed upon on September 12
by the General Affairs Council, and was followed two days later by a
common declaration of the heads of state or government, the Presidents of
the European Parliament and of the Commission and the CFSP High


12
This section is largely based on information obtained through interviews with
Commission and Council officials and the successive versions of the Council ‘road map’
for the implementation of the September 2001 European Union action plan to combat
terrorism (latest version available: Council document no. 13909/1/02 REV 2).
¨
JORG MONAR
432

Representative.13 Both texts emphasized full solidarity with the US and the
need for both internal and external action, indicating certain priorities which
were further developed in the ‘European Union Action Plan to Combat
Terrorism’ adopted on 21 September by the European Council.14 This
Action Plan, agreed upon in record speed, was subsequently revised several
times, and in the end contained over 200 measures across all three pillars.15


A. Internal measures
1. Legislative measures
9/11 revealed one of the most glaring deficits of EU action against terrorism.
Although there had been more than a quarter of a century of cooperation
against terrorism, and in spite of the increased potential for action created by
the treaty reforms of the 1990s, the EU had never created a common legal
basis for the cross-border prosecution of terrorists. There was no common
legal definition of terrorist acts, no harmonized system of penalties and – with
the extradition agreements of 10 March 1995 and 27 September 1996 still not
being ratified by all Member States – no basis for accelerated extradition.
Removing these deficits became a priority for EU action after 9/11. The
European Council itself set the extremely tight deadline of December 2001
for reaching agreement on several legal acts. Most prominent amongst these
was the adoption of framework decisions on the introduction of a European
Arrest Warrant, on the definition of terrorist offences in combination with a
minimum harmonization of penalties for those offences, and on the freezing
of assets of terrorist groups.
The EU decision-making process was greatly helped by the fact that the
Commission had already been working on proposals for a European arrest
warrant and a common definition of terrorist acts for many months – so that
it was in position to submit legislative proposals to the Council on
20 September 2001. Yet in spite of the common emphasis on the need for
rapid action, negotiations on the framework decisions – which were largely
carried out by the Article 36 Committee – ran into serious difficulties and
made only slow progress during the first few weeks. In the case of the
European Arrest Warrant there were major differences over the list of
offences to which the Warrant should apply and over the full abolition of
the principle of double criminality. In the case of the framework decision on
terrorist offences, the main points of contention were the scope of the
definition, and the level of minimum penalties. Yet intense pressure by the
European Council and continuous efforts by the Belgian Presidency made it

13
Council document no. 11795/01 and Press release 140/01.
14
Council document no. SN 140/01.
15
See Council documents nos. SN 14925/01 and 10773/2/02.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 433

possible for the JHA Council at its meeting of 6/7 December 2001 to come to
an agreement on both the Framework Decision on combating terrorism and
on EC Regulation 2580/2001 authorizing the freezing of assets of terrorists
and terrorist organisations.
The Framework Decision on combating terrorism, whose final adoption
was delayed because of parliamentary scrutiny until 13 June 2002,16 defines
terrorism in relation to one or all of the following list of intentions (Article 1):
serious intimidation of a population,

undue compelling of a Government or international organization to per-

form or abstain from performing any act,
 serious destabilization or destruction of the fundamental political, constitu-
tional, economic or social structures of a country or an international
organization.
Political intention is the basic criterion for distinguishing a terrorist offence
from other offences. Yet the Framework Decision does not classify all acts
pursuing one of these intentions as a terrorist offence but limits it to a series
of explicitly listed acts (Article 1(a)–(i)). Some are more ‘traditional’ offences,
such as kidnapping, hostage taking, hijacking airplanes or the use of firearms
or explosives. Others such as research into and development of biological and
chemical weapons and interfering with or disrupting the supply of water,
power or any other fundamental natural resource the effect of which is to
endanger human life, take into account the EU’s widened threat perception
regarding international terrorism. Yet according to Article 1, it is left to the
Member States to define terrorist acts under national law.
The Framework Decision also comprises a further element of minimum
harmonization. Each Member State is to take necessary measures for terror-
ism offences to be punishable by effective, proportionate and deterrent
criminal sanctions, possibly entailing extradition (Article 5). Member States
are obliged to make individuals responsible for a violation liable to a prison
term of a minimum term of not less than fifteen years for leading a terrorist
group and eight years for participating in terrorist activities. Participation in
a terrorist group receives a wide definition which includes supplying infor-
mation or material resources and the funding of terrorist activities in any
way, with knowledge of the fact that such participation will contribute to the
criminal activities of the terrorist group (Article 2(2)(b)). Special provision is
to be made for ‘terrorist-linked offences’ such as aggravated theft, extortion
and the drawing up of false administrative documents (Article 3), as well
as inciting or aiding or abetting a terrorist offence (Article 4(1)), but no
minimum penalty levels are set for those. There is also a special provision on


16
OJL 164 of 22.06.2002.
¨
JORG MONAR
434

possible penalty reduction for terrorist offenders who cooperate with the
judicial authorities (Article 6).
The Framework Decision is a significant step ahead for EU action in the
fight against terrorism. It should be recalled that several Member States did
not have substantive anti-terrorism legislation in force at the time of 9/11.
The Framework Decision ensures that some basic provisions will be common
to all. Yet it does not go beyond a minimum harmonization of the Member
States’ penal laws, leaving them a wide margin of discretion. There were also
serious concerns expressed by the European Parliament and several NGOs
about a clear enough distinction between terrorist acts and demonstrators.
Responding to them, the Council inserted into the Preamble the statement
that nothing in the Framework Decision should be ‘interpreted as being
intended to reduce or restrict fundamental rights or freedoms such as the
right to strike, freedom of assembly, of association or of expression, including
the right of everyone to form and to join trade unions with others for the
protection of his or her interests and the related right to demonstrate’.
Regulation 2580/2001 on ‘specific restrictive measures . . . with a view to
combating terrorism’17 was based on definitions from relevant existing
international agreements, especially the International Convention for the
Suppression of the Financing of Terrorism, and was intended to allow the
freezing of assets and other financial measures against terrorist individuals
and organizations. The Regulation was based on a combination of Articles 60,
301 and 308 TEC and a CFSP ‘Common Position’ adopted on the same day,
which made it in formal terms a CFSP- motivated economic sanction. This
interesting case of cross-pillarization happened as a result of the need for
implementation of UN Security Council Resolution 1373(2001). The
Regulation uses a broad definition of both financial assets, which include
assets of every kind, whether tangible or intangible, movable or immovable,
however acquired (Article 1), and of financial services, which include insur-
ance and insurance-related services, and banking and other financial services
(Article 3). Estimates of assets frozen throughout the EU during the first year
of application (2002) vary from Euro 40 million to 100 million.18
Regulation 2580/2001 was complemented by an agreed list, adopted by
written procedure as a Council ‘Decision’ of 27 December 2001.19 It com-
prised a total of twelve organizations and thirty individuals, including the
Basque terrorist organisation ETA, and several armed Irish Protestant and


17
OJL 344 of 28.12.2001. The Regulation was followed by further implementing legislation
such as Decision Implementing Article 2(3) of the Regulation adopted on 17 June 2002
(OJL 160 of 18.06.2002).
18
Europol: 2002 Organised Crime Report (File number: 2530–108 REV. 1), The Hague
2002, p. 17.
19
OJL 344 of 28.12.2001.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 435

Catholic groups. The list, which has been amended several times,20 should be
regarded as an important piece of harmonization in its own right. It should be
mentioned that on 6 March 2001 the Council had adopted another EC
Regulation (467/2001)21 on the freezing of funds belonging to members of
the Taliban and entities connected to Osama bin Laden. This was later
modified to take into account the end of the Taliban regime and to extend
the sanctions to all ‘economic resources’.
The most controversial legislative measure turned out to be the
Framework Decision introducing a European Arrest Warrant. Agreement
was only reached in December 2001 after the Belgian Presidency brokered a
compromise with the Italian Government which had wanted to exclude
corruption and a number of other offences from the list covered by the
warrant.22 Italy in the end accepted the original list but insisted successfully
on the amendment of certain constitutional provisions in Italy as a prior
condition for implementation. Parliamentary scrutiny reserves then delayed
the formal adoption of the Framework Decision until 13 June 2002.23 The
European Arrest Warrant, which entered into force on 1 January 2004 for
initially only eight Member States24 (as the others had not yet adopted all
necessary legislative measures at the national level), makes it possible to arrest
and transfer suspects between Member States without formal extradition
procedures, eliminating in particular all possible political intervention by
national governments. In contrast with existing extradition practices, which
could take years, the final decision on executing a European arrest warrant
must be taken within sixty days from the arrest of the wanted person (Article 17).
The Framework Decision sharply restricts the grounds for a refusal to
execute the European Warrant (Articles 3 and 4). Although the European
Commission had fought hard for the abolition of the double criminality
principle, the Framework Decision confirmed that principle as a condition of
execution of the warrant, making however a substantial exemption from it
for a total of thirty-two offences. These are enumerated in a ‘positive list’
(Article 2), which includes acts of terrorism. The Framework Decision on the


20
Council Decisions of 2 May, 17 June, 28 October and 12 December 2002 implementing
Article 2(3) of Regulation (EC) No 2580/2001, OJL 116 of 03.05.2002, OJL 160 of
18.06.2002, OJL 295 of 30.10.2002, OJL 337 of 13.12.2002 and OJL 229 of 12.12.2003.
After its last amendment in September 2003 the list comprised fifty-two persons and
thirty-four groups and entities.
21
This Regulation was later replaced by Council Regulation 881/2002 (OJL 139 of 29.5.2002)
which has to date (April 2004) been amended thirty-one times by Commission
Regulations.
22
On the negotiations on the Arrest Warrant, see Wenceslas de Lobkowicz, L’Europe et la
´ ´´
securite interieure (La documentation francaise, Paris 2002), 183–5.
¸
23
OJL 190 of 17.06.2002.
24
Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden and the United Kingdom.
¨
JORG MONAR
436

Arrest Warrant constitutes a major breakthrough for cross-border judicial
cooperation in the EU.25 The impetus given by 9/11 also contributed to the
agreement reached by the JHA Council of 6/7 December 2001 on the Council
Decision setting up the cross-border prosecution unit Eurojust.26 The Decision
enabled the replacement of the ‘Provisional Judicial Co-operation Unit’ by the
permanent Eurojust. The Member States were able to agree on a broad man-
date for Eurojust as to the types of cross-border crime (which includes terror-
ism) in the prosecution of which Eurojust can support competent authorities
of the Member States. Agreement was also reached in that Eurojust – if acting
as a College – would be able to ask competent authorities of the Member States
to consider launching investigations or prosecutions.
Other legal instruments were less forthcoming. The adoption of the
Framework Decision on joint investigation teams between the competent
authorities of two or more Member States for the purpose of carrying out
cross-border criminal investigations, which was already under negotiation
well before 9/11, was delayed by several months by a Danish reserve and
finally adopted only in June 2002.27 It took the Member States until July 2003
to agree to a Framework Decision providing for the simplified and acceler-
ated cross-border execution of orders to freeze property, and even then the
deadline for implementation was only set for August 2005.28 To the con-
siderable frustration of the European Commission, the Member States were
extremely slow in ratifying the 2000 EU Convention on Mutual Assistance in
Criminal Matters29 and its 2001 Protocol, which includes cross-border
requests for interception of communications and monitoring of bank
accounts. By the end of 2002, only Portugal had ratified this important
instrument. This demonstrated again the drawbacks of the traditional
‘third pillar’ instrument with its need for ratification by all national parlia-
ments. Some of the Member States also failed to fully implement by the end of
2002 the Framework Decision of 26 June 200130 on money laundering.
Finally, negotiations also proceeded rather slowly in the Council on proposed
Framework Decisions on attacks against information systems, on the appli-
cation of the principle of mutual recognition to confiscation orders, on a
European Evidence Warrant for obtaining cross-border evidence in criminal
proceedings and on the confiscation of crime-related proceeds. All these had


25
ˆ ´
See on this point Emmanuel Barbe, ‘Le mandat d’arret europeen: en tirera-t-on toutes les
´ ´
consequences?’ in Gilles de Kerchove and Anne Weyembergh (eds.), L’espace penal
´en: enjeux et perspectives (Brussels, Editions de l’Universite de Bruxelles, 2002),
´
europe
113–17.
26
OJL 63 of 06.03.2002. 27 OJL 162 of 20.6.2002.
28
Council Framework Decision of 22 July 2003 on the execution in the European Union of
orders freezing property or evidence, OJL 196 of 2.8.2003.
29
OJC 197 of 12.7.2000. 30 OJL 182 of 5.7.2001.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 437

not yet been formally adopted by the time of the 11 March 2004 terrorist
attacks in Madrid.

2. Structural and operational measures
a. The enhanced use of existing EU structures. During the first weeks after
9/11 it became apparent that there were problems of coordination between
the two principal Council working parties dealing with terrorism: the third
pillar Working Party on Terrorism (WPT) and the second pillar CFSP
Working Party on Counter-Terrorism (COTER). The two key working par-
ties were instructed to cooperate more closely. This led in October 2003 to an
agreement that the two working parties would produce under each of the
EU’s half-yearly Presidencies a threat assessment report on threats posed by
terrorism within Europe (under the responsibility of the WPT), and in third
countries (under the responsibility of COTER). The Presidency could ask for
special consideration to be given to particular types of threats, or to particular
countries.31
Europol is an obvious asset in the EU’s operational response. Immediately
after 9/11 it was asked to give a situation report on terrorist activities within
the EU to the Council. The Member States committed themselves in the
context of the September 2001 Action Plan to the systematic transmission of
data relevant to terrorism to Europol, which had previously received rather
fragmentary information. The Director of Europol has since been giving
situation reports to the Council on a regular basis. As a result of a decision
adopted by the Brussels European Council on 21 September 2001, a team of
anti-terrorist specialists has been set up within Europol comprising of intelli-
gence or police specialists of the Member States. Some problems persist,
however. Europol’s task force seems to have experienced problems with
handling real-time data, and some national authorities have continued to
be reluctant to share information about terrorism. Europol has no power to
force them to do so.32
Under a mandate by the Council the PCTF has held several meetings to
discuss cross-border operational cooperation. The PCTF was able to agree
on recommendations for the strengthening of cooperation between the heads
of anti-terrorist units. These were implemented in April 2002. In April 2002
the PCTF agreed to set up a new structure involving the current, previous and
forthcoming EU presidencies, Europol and the Commission which should
meet between PCTF meetings to improve coordination.33 Eurojust has been
asked to strengthen cooperation between anti-terrorist magistrates and has

31
Council document no. 11994/3/03 of 28 October 2003.
32
Nora Bensahel, Counterterror Coalitions. Co-operation with Europe, NATO, and the
European Union (Santa Monica, Rand 2003), 40.
33
Council document no. 13909/1/02 REV 1, Annex p. 28.
¨
JORG MONAR
438

started to act as an intermediary between them. In order to increase the
information flow to both Europol and Eurojust, the Council decided on
19 December 2002 that Member States should designate specialized services
as contact points within their police services, and a Eurojust national corres-
pondent for collecting and forwarding all relevant information.34
It should be added that providing high-level joint training on cross-border
cooperation against terrorism has also become an important element in the
EU’s operational strategy. In its work programmes for 2002, 2003 and 2004,
the European Police College (CEPOL) has included special training for senior
police officers on investigation techniques. In November 2003, special anti-
terrorism training needs were identified for the ten new Member States
joining in May 2004, some of which will be provided by CEPOL.35

b. New structures and mechanisms. One of the most innovative responses
to 9/11 in operational terms was the introduction of regular meetings of the
heads of intelligence services which had until then remained entirely outside
of EU justice and home affairs cooperation. The first of these meetings
already took place on 11 November 2001 and was followed by one on
20 February 2002 which agreed on further common work on terrorist
profiles. Europol has been associated with these meetings. In April 2002 the
Council also agreed on the creation of multinational ad hoc teams consisting
of national experts for the gathering and exchanging of information on
terrorists in the pre-judicial phase of investigation.36
Most noteworthy amongst the new mechanisms is the introduction of a
system of peer evaluation of national arrangements for combating terrorism.
A common mechanism for evaluating national legal systems was formally
agreed on by the Council on 28/29 November 2002.37 It provides for an
elaborate process which starts with the forwarding of a detailed questionnaire
drawn up by a team of independent experts to the evaluated Member State.
The team then visits the respective Member State to seek clarification on the
answers given to the questionnaire, following an itinerary agreed with that
Member State, which involves meetings with relevant political, administra-
tive, police, customs or judicial authorities there. The evaluation team pre-
pares a confidential draft report to be sent to the Council. The Council
discusses the report and adopts any conclusions and recommendations by
consensus. The Council may invite the evaluated Member State to report on
progress made on recommendations made. The implementation of the
Decision on the evaluation mechanism runs parallel to the production of

34
Council Decision of 19 December on the implementation of specific measures for police
and judicial cooperation to combat terrorism, OJL 16 of 22.1.2003.
35
Council document no. 14307/1/03 REV 1 of 26 November 2003.
36
Council document no. 13788/03 of 21 October 2003. 37 OJL 349 of 24.12.2002.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 439

an inventory of national measures and early warning plans, for which the
Council Working Party on Terrorism and the PCTF are responsible.

c. Specific security measures. Specific security measures taken in response
to 9/11 included a temporary strengthening of checks at external Schengen
borders, an agreement reached by the Article 36 Committee on 23 November
2001 on a definition of a terrorist threat of exceptional gravity which would
justify the re-establishment of internal border controls,38 the inclusion of
improved terrorist alert input possibilities into the list of desirable new
functionalities of the new Schengen Information System (‘SIS II’) and the
setting up of a Community mechanism for the coordination of civil protec-
tion measures which was adopted by the Council on 23 October 2001.
Regulations were also adopted on civil aviation security (2320/2002 and
1486/2003).


B. External measures
The Union’s CFSP has not acquired the best reputation in dealing with
international crisis situations. Yet after the events of 9/11, it not only came
up quickly with several strong statements in support of the US and inter-
national action against terrorism, but also provided the framework for intense
diplomatic activity aimed at building up a broad international coalition. It
started with ministerial Troika visits to several Middle East countries, Saudi
Arabia, Pakistan, Iran, Uzbekistan, Turkmenistan and Tajikistan. A second
high level round of visits by Guy Verhofstadt and Romano Prodi followed.
Efforts in Central Asia continued with a tour of the Regional Directors Troika
from 10 to 14 June 2002. The EU convened on 20 October 2001 a meeting of
the European Conference dedicated to combat terrorism. This brought
together not only the candidate and EFTA countries, but also the Balkan
countries of the Stabilization and Association Process, the Russian Federation,
Moldavia and Ukraine. Both the ministerial level meeting of the Euro-
Mediterranean partnership on 5/6 November 2001 and the ministerial week of
the UN 56th General Assembly in mid-November were used, not only for
intense bilateral and multilateral efforts on maintaining the fragile international
coalition, but also to achieve progress on tougher measures against the
financing of terrorist activities. Another example of the EU’s multilateral efforts
was the ‘Copenhagen Declaration on Cooperation against International
Terrorism’ adopted on the occasion of the 4th Asia-Europe Meeting in
Copenhagen on 23–24 September 2002 by the EU and its ASEM partners.
Bilateral cooperation was also stepped up with Russia through the decision to


38
Council document no. 14181/1/01.
¨
JORG MONAR
440

set up a network of contact points, negotiations on an agreement with Europol,
and discussion of further common action at an EU-Russian ministerial meeting
in Moscow on 5 November 2002.
This was backed up by economic and financial instruments such as the
signing of a cooperation agreement with Pakistan – a crucial partner in
the coalition against the Taliban – on 24 November 2001, the adoption of
the negotiating directives for trade and a cooperation agreement with Iran on
12 July 2002, and the provision of (until May 2002) of Euro 559 million of
emergency aid for Afghanistan. On 7 October 2001 all Member States signed
the UN Convention for the Suppression of the Financing of Terrorism, and
by the end of December 2001, an EC Regulation was in place implementing
UN Security Council Resolution 1373 (2001) on the freezing of terrorist
financial assets.
The Council also agreed on a systematic evaluation of the EU’s relations
with third countries in the light of their possible support for terrorism, with
the possibility not only of incorporating terrorism clauses into trade and
cooperation agreements with third countries,39 but also taking measures on
technical assistance and other trade instruments (‘carrot and stick’
approach). In 2002, special clauses on anti-terrorism were inserted into
agreements with Algeria, Chile and Egypt, and a special exchange of letters
on this issue was attached to a new cooperation agreement with Lebanon,40
constituting a major move towards the ‘mainstreaming’ of the fight against
terrorism in conventional relations with third countries.
For obvious reasons, bilateral cooperation with the US ranked particularly
high on the EU’s agenda after 9/11: the Union had to demonstrate solidarity
with the US, its most important international partner, which in this situation
clearly expected more than just words. As both the military support offered
by individual Member States – primarily by the United Kingdom – for the
operations in Afghanistan and the invocation of the collective defence clause
of Article 5 of the North Atlantic Treaty took place outside of the EU frame-
work, it might appear as if the US did not get much in terms of solidarity from
the Union. Yet outside the military field the EU’s support was far from
negligible. Deploying the full range of its diplomatic instruments in the
CFSP context (see above) it made a substantial contribution to the build-
up of the international coalition. Its diplomatic efforts were particularly
useful in countries with whom the US had a rather strained relationship,
such as Iran.
The Union went out of its way to upgrade cooperation with the US in the
areas of justice and home affairs, not one of the easiest domains of trans-
atlantic cooperation because of some fundamental differences over the death

39
Council document no. 7750/02, agreement reached on 17 April 2002.
40
See Council document no. 13909/1/02 REV 1, Annex p. 22.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 441

penalty, powers of law enforcement authorities and protection of personal
data. On 20 September 2001 the Council gave the green light to a joint
assessment with the US of terrorist threats and to the participation of US
representatives in meetings of the heads of EU counter-terrorism units meet-
ing at the instigation of the PCTF. To this was added the possibility of
representatives of US authorities participating in EU joint investigation
teams. All this amounted to an unprecedented opening of EU structures
towards a third country.41
On 19 November 2001, an official mission of the provisional Eurojust went to
Washington. This resulted in the appointment of a US contact point for Eurojust
and an agreement on regular bilateral meetings. At the margins of the Justice and
Home Affairs Council of 6 December 2001, an agreement was signed between the
¨
Director of Europol, Jurgen Storbeck, and US Ambassador Rockwell Schnabel, on
the exchange of strategic and technical information and of liaison officers.42
Although this agreement does not yet provide for the exchange of data on persons
it was presented as a first step to be followed by a more comprehensive agreement.
Its significance was underlined by the presence of US Secretary of State Colin
Powell at the signing. In December 2001 the Council agreed on a mandate for
Europol to negotiate a second agreement with the US, including the exchange of
personal data. On 1 February 2002 an FBI agent was appointed on secondment to
Europol, and in April 2002 two Europol liaison officers were designated for
Washington. The negotiations on the second Europol–US agreement were not
without difficulties. A range of NGOs expressed major concerns about a potential
undermining of EU data protection rules, and several Member States were not
satisfied with the initial guarantees offered by the US which were significantly
lower than in the EU. A further problem was the question of Europol’s immunity
in case of US citizens seeking compensation for injury suffered as a result of
transfers of data by Europol. After the US Government had given additional
reassurances in a letter clarifying the content of relevant US legislation on data
protection, the agreement was signed in Copenhagen on 20 December 2002.43
Yet data protection issues continue to be a problem. In 2003/4, the
European Parliament adopted three highly critical Resolutions on an agree-
ment negotiated in February by the European Commission with the US
Administration obliging trans-Atlantic carriers (air and sea) to provide
electronic reservation system passenger details (‘Passenger Name Records’,
PNR) to US Customs.44 While the US made a number of minor concessions, a
new agreement reached by the Commission with the US on 16 December
2003 still left the European Parliament and numerous civil liberties
groups highly dissatisfied. The Commission found itself in an extremely

41
Council document no. 13788/03 of 21 October 2003, p. 5.
42
Council document no. 14586/01. 43 Council document no.15231/02.
44
See EP documents no. P5 TA(2003)0097, P5 TA(2003)0429 and P5 TA(2004)0245.
¨
JORG MONAR
442

uncomfortable position, between severe pressure by the US, civil liberties
concerns and different attitudes adopted by Member States. The

<<

ńňđ. 15
(âńĺăî 23)

ŃÎÄĹĐĆŔÍČĹ

>>