Intervention by Mr Jan Kleijssen
Technical Meeting of the Counter-Terrorism Committee Executive Directorate on ”Preventing Terrorists from Exploiting the Internet and Social Media to Recruit Terrorists and Incite Terrorist Acts, while Respecting Human Rights and Fundamental Freedoms”
New York, 16-17 December 2015
Intervention by Director Jan KLEIJSSEN, Directorate of Information Society and Action against Crime, Council of Europe
Session V: International cooperation
Ladies and Gentlemen,
First of all, I would like to thank CTED for inviting the Council of Europe to make an intervention at the occasion of this Technical Meeting.
The most recent spate of attacks perpetrated by Da’esh against targets originating from outside of the MENA region (a civilian Russian aircraft carrying tourists; ordinary peaceful citizens just going about their everyday lives in the capital of France and in San Bernardino in the United States) demonstrate the length to which certain terrorist groups and individuals are prepared to go in order to lash out at a world which has united in an effort to stop their crimes and their ideology of hatred and bigotry in their tracks. As we can see, soft civilian targets are increasingly being selected by terrorists and the weapons they use to carry out these attacks become more sophisticated. The risk of terror attacks involving the use of chemical agents or nuclear material in a major city can unfortunately no longer be discounted.
We are facing an enemy who is ruthless and determined to provoke us to confrontation in a battle, which in the millenarian worldview of the terrorists will inaugurate the end of times. They want us to fight on their terms, because doing so means to rip apart that precious fabric of which our societies are made up. We must not take this perverted bait, but instead carefully consider how best to prevent and suppress terrorism without undermining and destroying the fundamental values which are the very foundation of any civilized society.
The United Nations has taken the global lead in confronting the menace posed by international terrorism to the peace and security of all States in a manner fully consistent with international human rights obligations. The many recent Resolutions adopted by the Security Council on terrorism are testimonies to the strong resolve to bring terrorists to justice which the United Nations and States around the world are continuously demonstrating.
As the regional European organisation tasked with upholding and promoting human rights and the principle of rule of law, the Council of Europe has for a long time been engaged in how to prevent and suppress terrorism while respecting human rights and the rule of law. In 2002, the Committee of Ministers of the Council of Europe adopted a set of “Guidelines on Human Rights and the Fight against Terrorism” which – sadly – are still as relevant today as more than a decade ago. Moreover, the Council of Europe continues to play a pivotal role in developing legal standards regulating international cooperation on criminal matters, including on the Internet. The Council of Europe’s Budapest Convention on cybercrime from 2001 is to this day the only existing international binding legal instrument in its field and has currently 47 Parties, many of which from other regions than Europe.
The subject of international cooperation plays a key role in the efficient prevention and suppression of terrorism. The abuse by terrorists of ICT to promote their ideologies of hatred and spread fear has become emblematic of what I would call the new “global brands of terrorism”. Social media have provided terrorists with a reach beyond anything previously dreamt of, and the structure of the Internet has made it possible for them to move seamlessly between jurisdictions, thereby to a large degree making it impossible for state authorities to effectively block access to their websites. ICT are of course also being used for communications between terrorists and for the purposes of training for terrorism.
An even more nightmarish vision is the potential ability of terrorists to conduct full-scale cyberattacks against critical infrastructure bringing chaos and paralysis to States. In short, States have much to do in countering the threat posed by terrorism to and through ICT and the Internet – and little time to do it!
On the other hand, the fact that ICT and the Internet are being abused by terrorists should not make us jump to hasty conclusions about their potential dangerousness. Social media have played – and continue to play – a vital role in legitimate political discourse. The historically unparalleled immediate access to information for ordinary citizens offered by ICT, as well as the ability to upload information and participate in debates online is an important empowering factor in any society. Freedom of expression is a basic human right which should not be unduly limited. This, of course, does not mean that we should tolerate on-line hate speech or calls for terrorist attacks to be carried out, nor should we allow terrorists to provide and receive training through the Internet, but we must tread carefully. You may hold extremist views, with which the surrounding society profoundly disagrees, without being a terrorist or otherwise committing any crime. But once that fine line between legitimate expression and criminal act is overstepped, the State also has a responsibility to protect its citizens against harm, and hence an obligation to take the necessary and adequate legal measures against the transgressor. Given the nature of the Internet, this often entails cooperation across multiple jurisdictions, and that leads me back to the issue of international cooperation in criminal matters.
The Budapest Convention on Cybercrime is the main international legal instrument on cybercrime and electronic evidence. It requires Parties to provide law enforcement authorities with the necessary powers to secure evidence on computer systems not only with respect to cybercrime but any offence, including terrorist misuse of information technologies, and it requires Parties to engage in effective international cooperation. Experience shows that this may function reasonable well in some cases.
The Convention contains a whole series of provisions aimed at improving the international cooperation between its Parties. I will not here go into the highly technical details of many of these provisions, but merely point out that it is a fact, that the most efficient tool for international cooperation provided by the Budapest Convention has proven to be the “24/7 Network”. This network is used by Parties for requesting and providing immediate assistance for the following investigative purposes:
- the provision of technical advice.
- the preservation of data.
- the collection of evidence, the provision of legal information, and locating of suspects.
It should be noted that under the Budapest Convention, a Party’s point of contact shall have the capacity to carry out communications with other Parties on an expedited basis and be operated by trained and equipped personnel.
This mechanism for information exchange is unique in international law – and that fact may, at least partly, point to the reason why we have not at global level made more headway in improving international cooperation in criminal matters, whether off- or on-line.
Overall mutual legal assistance procedures need to be rendered more efficient. The Parties to the Budapest Convention therefore adopted a set of recommendations to this effect one year ago, in December 2014.
This may still not be sufficient. A major challenge is cloud computing where data is held somewhere in foreign, unknown or multiple jurisdictions by several layers of service providers. To whom should a mutual legal assistance request be sent in such situation? An international solution is required.
In December 2014, the Cybercrime Convention Committee – representing the Parties to the Budapest Convention – therefore established a Cloud Evidence Group. This Group, among other things, is reviewing how criminal justice authorities can cooperate with cloud service providers also across borders. Proposals for solutions should be available within a year for now, by the end of 2016.
The crux of the matter is that international cooperation in criminal matters is often cumbersome and time-consuming. The international rules governing mutual legal assistance were simply not conceived in the age of the Internet or with ICT in mind. The 24/7 Network of the Budapest Convention mainly owes its success to the fact that it is operated on an expedited basis and provides its users with the possibility of fast-track processing of requests for preservation of data or for getting vital information about the legal requirements of other Parties for e.g. providing mutual legal assistance in a specific case. In other words, this mechanism speeds up the international cooperation in criminal matters, but crucially without compromising the principle of rule of law.
If we want to be more efficient in international cooperation aimed at preventing and suppressing terrorism, including when terrorists are operating on and through the Internet, I believe that we must look to this kind of solutions. We must of course safeguard the procedural rights of suspects under investigation and respect the national legal requirements for the provision of mutual legal assistance and extradition of our partners, but at the same time we must also be able to act swiftly to secure evidence and apprehend suspects operating from another jurisdiction. A mechanism like the 24/7 Network may contribute to making this possible.
That said, all international cooperation depends on the existence of mutual trust, namely our confidence in the willingness and ability of our partners to work with us in good faith and respect the requirements of relevant international and domestic law. To further the establishment of mutual trust, we have to work better and more together both regionally and globally.
This is a challenge which we take seriously, and the Council of Europe currently is engaged in capacity building on cybercrime in more than 125 States around the world – far beyond the European region.
Finally, I cannot avoid mentioning another fundamental obstacle to efficient international cooperation in criminal investigations of terrorism: The lack of an internationally agreed legal definition of terrorism. I will not dwell on the many and complex reasons for this situation, but merely note that the absence of such a definition significantly hampers international cooperation on mutual legal assistance in terrorism cases and on extradition of terrorism suspects. Somehow we have to do better, if we are to deny terrorists safe havens and bring them to justice.
Another topic, which I would like to touch on in this presentation, is the use of “special investigation techniques” or “SIT”. SIT play a very important role in detecting, investigating and preventing terrorist crimes, and if anything the use of ICT by terrorists has only increased the relevance of such techniques. Nevertheless, SIT should be applied cautiously and in respect of basic human rights and the rule of law. In the case of Klass and others v. the Federal Republic of Germany from 1978, the European Court of Human Rights reasoned that: “Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interest of national security and/or for the prevention of disorder or crime”.
In 2005 the Committee of Ministers of The Council of Europe adopted a recommendation addressed to the Member States “on ‘special investigation techniques’ in relation to serious crime including acts of terrorism”. This recommendation covers such areas as, inter alia, conditions of use of SIT, operational guidelines and international cooperation. The recommendation remains one of the most important international standards on the conditions for applying SIT and is still widely used.
The Council of Europe’s steering committee in the field of counter-terrorism, the CODEXTER, intends to carry out a revision of the recommendation, bringing it up to date by including SIT that were not foreseen at the time of its drafting, in particular concerning the Internet and financial investigation techniques. Work is to begin early next year and expected to be finalised by the end of 2016.
The CODEXTER on 17 and 18 November 2015 also decided to start work on the topic of “terrorism and the Internet” as a matter of priority for the years 2016 and 2017.
Because of the way in which the Internet functions, States must build and maintain working relations with the private sector – both domestically and internationally – to identify strategies to counter the abuse of the Internet by terrorists. The Council of Europe has excellent experiences with this kind of cooperation in the broader field of cybercrime, and there is no reason to think that similar models of cooperation would not work with regard to counter-terrorism.
We are in the process of establishing a platform between Governments and major Internet companies and representative associations on their respect for human rights online, including on measures to protect, respect and remedy challenges and violations to them. This platform may also serve as interface for exchanges on how to effectively stop the misuse by terrorists of the Internet and ICT while respecting human rights and the rule of law.
Terrorists are increasingly becoming very IT-savvy, and there is no reason to believe that they will refrain from carrying out cyberattacks on e.g. the critical infrastructure of States, if they get the chance. The CODEXTER will therefore, in addition, examine the threat posed by cyberterrorism and possible ways to countering it.
Let me end this intervention by giving you some information about other recent and planned activities of the Council of Europe in the field of counter-terrorism.
On 19 May 2015, the Committee of Ministers adopted an Action Plan to combat extremism and radicalisation leading to terrorism to be implemented in the period 2015 – 2017. In accordance with this Action Plan, the Council of Europe will, inter alia, undertake to reinforce the international legal framework against terrorism and violent extremism, provide standards on how to prevent and suppress the phenomenon of “terrorists acting alone”, and address radicalisation, including on the Internet. To this end, the Council of Europe’s ongoing “No Hate Speech Campaign” will be enhanced and extended until 2017.
On the same date, the Committee of Ministers also adopted the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism.
The Protocol, which implements the criminal law aspects of UNSC Resolution 2178, also provides for international cooperation in the form of the exchange of police information between Parties concerning suspected “foreign terrorist fighters” on a 24/7 basis. It was opened for signature in Riga, Latvia, on 22 October 2015, and so far 19 Member States and the European Union have signed the Riga Protocol, which we expect to enter into force in the near future. Both the Convention and the Riga Protocol are of course open to all States, regardless of whether they are Members of the Council of Europe or not, upon invitation by the Committee of Ministers of the Council of Europe.
Let me end by underlining that the Council of Europe, though a regional organisation, has a long and successful tradition for working with states from all over the world – in particular in the fields of mutual legal assistance in criminal matters, extradition, and cybercrime.
It is our aspiration that the standards developed in the framework of the Council of Europe may either form the basis for direct cooperation with States outside Europe, or serve as an input to the deliberations ongoing in other regions of the world.
One thing is certain: No State or region can stand up to the threat posed by terrorism on its own and therefore improving international cooperation to prevent and suppress terrorism is of so much greater importance than ever before.
Thank you for your attention.