Third High-level meeting of the Ministries of the Interior - Fight against terrorism and organised crime to improve security in Europe 17 -18 March 2005, Warsaw (Poland) 

Background Paper

Questions and Answers

1. What has the Council of Europe done to combat terrorism?

As early as 1977, the Council of Europe put together its first answer to the problem – the Convention on the Suppression of Terrorism. It was a response to the different terrorist movements that had arisen in the late 60s and early 70s – the Red Brigades in Italy, the Red Army Faction in Germany and the IRA in Britain, for example. Its main aim was to cover extradition procedures, but it was bound by the controversies of the time – the main one being the difficulty of distinguishing between political and criminal acts.

Since then, a lot of the Council of Europe´s work on criminal matters has touched on the topic. The cybercrime convention covers the use of the internet to plan attacks; the convention on money-laundering, which will also be replaced by a new convention on money laundering and financing of terrorism, can be used to stop criminals financing terrorist operations, and the conventions on extradition and mutual legal assistance tighten up procedures between national police forces. The Convention on the Suppression of Terrorism itself has been revised in order to overcome some of the difficulties and limitations met at the time of its drafting.

2. The Council is now proposing a new draft convention – the Convention on the Prevention of Terrorism. Why is this new approach necessary?

The new convention is very pragmatic in its approach. It is the first international text to take the process one step back and look at how to stop terrorism at the earliest stages - when it is being proposed and planned. The main aim is to criminalise three areas: publicly provoking terrorism, training and recruitment. These are all areas identified by our experts as missing from present law and practice and the convention will help to plug the gap. If the convention goes ahead, states which ratify it will commit themselves to bringing these three new criminal offences into their national body of laws.

3. So fundamentalists who preach hate against other races or religions could be arrested and tried?

This is a possibility, yes, but the definition is very strict. Prosecutors will have to prove that the person intended to incite the commission of a terrorist offence: it is a bit more than just condemning “hate speech”. And the message has to be distributed or otherwise made available to the public, printed in a leaflet or advertisement or broadcast on the internet for example.

4. Doesn’t this raise the possibility of curtailing freedom of speech?

Indeed it could, and that is the reason why the clause has been carefully debated by international experts before being included in the draft convention, and it is based on the Case-law of the European Court of Human Rights. The Council of Europe upholds the freedom of expression – Article 10 of the European Convention on Human Rights sets out the right for people to freely express their views, but also the limitations to this right. We have been careful to ensure that the clause can be applied only where there the result of such an act must be to cause a danger that a terrorist offence might be committed– where there is real intent to harm.

5. What about training and recruitment?

After 9/11 it became clear that terrorists were adapting legitimate business techniques for their own ends – recruiting vulnerable people and training them through perfectly acceptable flying schools for example. The draft convention makes an attempt to address this. It makes it a criminal offence to recruit people to commit terrorist offences – but again, there is a safeguard, the prosecutor has to prove that the recruitment was made with intent to commit or to contribute to the commission of a terrorist offence. Similarly, training people to commit or to contribute to the commission of a terrorist offence will be criminalised, if the intent and the knowledge of the fact that the skills provided are intended to be used for this purpose are proved.

6. But surely many of these people may be the naive victims of manipulative people? Is it not wrong to punish them?

This is a point of view that was discussed, and that generally we share. This is why the convention targets the trainers and recruiters, not the trainees and the people recruited.

7. What about human rights? Could anti-terrorist action not potentially lead to abuses?

The Council of Europe’s main raison d’etre is to ensure that human rights are respected . This is why we have made sure that our work on the fight against terrorism does not undermine fundamental human rights. One of our first reactions to 9/11 was to set out guidelines for states dealing with terrorists – including a complete ban on the death penalty. They cover data protection, privacy, arrest, police custody, pre-trial detention, legal proceedings, extradition and victim compensation. And we recently completed this work with a new set of guidelines dealing more thoroughly with the issue of victims of terrorism. This topic is of high interest for us, as demonstrates also the ongoing work on the exchange of best practices on compensation schemes and on the revision of the existing recommendation on assistance to victims.

8. Some people still claim that terrorism is an acceptable form of political action. What do you say?

For the Council of Europe, this is very clear. All terrorist acts are criminal, and should be treated as such, with investigation, committal and sentencing all carried out according to internationally accepted rules.