Exploring Criminal Law in Countering Terrorism in the EU

Exploring Criminal Law in Countering Terrorism in the EU — Antoine Andary

Terrorism has been the subject of strong social condemnation in Europe since the 1980s, like the creation of the prosecution of national anti-terrorism around many European countries. The first anti-terrorism laws of many provisions special cases were created to try these particularly serious offenses, as of September 9, 1986. This progressive construction of “terrorist criminal law” therefore deserves to be studied, since the legislator every year intensifies the repression of terrorism a little more.

Terrorism is at the historical origin of the extension of its centers of interest beyond exclusively economic and financial. Indeed, while the internal market was in full swing construction within the walls of the Communities, international tensions and the development of international terrorism in the 1970s gave birth to the will, among European states, to improve police and judicial cooperation. Thus, the Terrorism, Radicalism, Extremism, and International Violence group (TREVI), was formed at the initiative of the interior ministers of member states, including objectives that were essentially operational, no normative act having been produced there. Furthermore, behind the prerequisites for the European Union criminal jurisdiction, it is terrorism, or more precisely the fight against this phenomenon, which will have really been the driving force of the building a more than economic Union.

Several movements are taking place in the direction of the degradation of the rule of law under the effect of terrorism. First of all, the charge of criminal practice no longer applies only to the acts themselves, but also to presumed intentions, or even simple suspicions which are often unfounded. Criminal law drifts towards an excessively preventive logic, the aim of which is to administratively trace individuals, and which thus significantly potentiates the risk of error. The very general definition of the offense of terrorist criminal association is a glaring example. It suffices to witness the major ongoing terrorism trials to see to what extent certain defendants can, when they are not totally innocent with regard to the procedure, nevertheless, be very distant from the terrorist act in itself.

Moreover, the evolution of the terrorist threat and its unpredictability highlight the limits of our intelligence techniques. Indeed, the diffuse nature of the threat leads to legitimizing collections often targeting the field of privacy, without the possibility of control over their use, and with an almost non-existent deterrent effect, as the news unfortunately shows. This while the General Data Protection Regulation (GDPR) was intended to stem the drifts in data collection. In 2005, when defining the European anti-terrorism strategy, was thus affirmed that the Union ‘undertook to fight terrorism on a global scale while respecting the rights of people and to make Europe more secure, by allowing its citizens to live in a climate of freedom, security, and justice ‘. Given the transnational dimension of acts of terrorism, they present very often this element of foreignness which makes the fight against this phenomenon even more complex. Therefore, a response from a State that remains isolated or a juxtaposition of responses cannot fight effectively against these particular crimes. A globalized phenomenon, therefore, calls for a response globalized and the European Union is an appropriate framework to allow coordinated action and more effective between its member states.

Correspondingly, this protean nature of terrorism raises a difficulty, how to prevent different causes? Faced with this high diversity, it seems essential, in order to fight effectively against terrorism, to understand the causes. If they do not all have the same contours, they rest nevertheless on an identical process, as violent radicalization. The phenomenon by which some people, adhering to certain points of view, opinions, and ideas may be led to commit terrorist acts, violent radicalization does indeed seem to be a common feature of all forms of terrorism, then declining according to the opinions and ideas to which it adheres. The fight against radicalization and terrorism, therefore, seems to be an essential tool in the fight against terrorism but, obviously, the goal seems difficult to achieve, beyond this fight against causes terrorism, it then appeared necessary to also fight against the means of terrorism, particularly the financial means, in order to move towards the assigned preventive objective. The logics are, in appearance, very different, but in reality, they come together in that both aim to deprive terrorist groups of their resources, of their resource’s human rights, by fighting against violent radicalization, and their economic resources, by fighting against the financing of terrorism. In each of these objectives, the implementation of a policy coordinated within the European Union seemed more than timely given the internationalization and externalization of the causes of terrorism.

However, relying on these two axes, the contribution of European Union law in the prevention of terrorism is beyond doubt. Through research initiated into the causes of radicalization, the Union allows a better knowledge of the factors of the phenomenon and proposes a certain number of tools to reduce the consequences. By defining control and verification of financial transactions, combined with the possibility of freezing funds linked to terrorism, also allows concerted and harmonized action between the different Member States. Let us take the Article 29 of the Treaty on European Union expressly mentions terrorism as one of the serious forms of crime to be prevented and combated at the Union level, the French Constitution version of October 4, 1958, does not contain any formal provisions relating to the fight against terrorism. And neither the penal code nor the code of penal procedure can make up for the shortcomings of the French Constitution. However, the paradox is only apparent. If the 1958 Constitution, adopted at the time of the Algerian War of Independence, ignores terrorism, it is quite simply because of the legal measures adopted to combat it, certain acts of war may indeed constitute terrorist acts, could be, in this very particular context, on the basis of the exceptional powers granted temporarily to the Head of State, by application of Article 16 of the Constitution, of which the Constitutional Council had to know. But every act of terrorism does not necessarily meet the conditions required by this exceptional device, even if, during the sole implementation of this article from April 23 to September 29, 1961, the Constitutional Council seems to have favored a realistic conception. of its scope.

Exploring Criminal Law in Countering Terrorism in the EU Antoine Andary
Exploring Criminal Law in Countering Terrorism in the EU Antoine Andary

Finally, the value of a device aimed at combating acts of terrorism is based on the prevention of such acts, repression not intervening in effect after the act has been committed. From this point of view, terrorism is a difficult crime to specificity and difficulty of the matter, the terrorist is not moved by the same motivations as other offenders, it is not about making a profit, but very often about to wage an ideological struggle.

Author at Medium | Political Communication and International Affairs, Counter-Terrorism Research Fellow and Intelligence Analyst