Yearbook of International Humanitarian Law 2013 || Counter-Terrorism and International Law Since 9/11, Including in the EU-US Context

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  • Chapter 10Counter-Terrorism and International LawSince 9/11, Including in the EU-USContext

    Gilles De Kerchove and Christiane Hhn

    Abstract The article by EU Counter-Terrorism Coordinator Gilles de Kerchoveand his adviser Christiane Hhn provides an inside view into the EUs practices andviews related to counter-terrorism and international law. It explains the EUscriminal justice approach to the fight against terrorism and provides arguments forthe effectiveness of this response in practice. The authors set out the tools forregional law enforcement and judicial cooperation the EU has adopted since 9/11,based on the principle of mutual recognition, as well as EU-US cooperation in thisarea. It also looks at the role of the military in the fight against terrorism. In asecond part, the article deals with questions related to the international legalframework for the fight against terrorism, such as the existence of not of an armedconflict in the legal sense against Al Qaeda. It also explains relevant initiatives inthe EU-US context, including the EU-US legal advisers dialogue, the EU frame-work to support the closure of Guantnamo and the EU input to the implementingprovisions of the National Defense Authorization Act.

    Keywords European Union Counter-terrorism Terrorism Criminal justice Law enforcement EU-US relations EU-US legal advisers dialogue UnitedStates International law International humanitarian law Human rights law Guantanamo National defense authorization act Remotely piloted aircraftsystems Detainees Principle of mutual recognition

    Gilles De Kerchove is the European Union (EU) Counter-Terrorism Coordinator (CTC).Dr. Christiane Hhn is adviser to the EU CTC. The views expressed in this article are those ofthe authors alone and do not necessarily reflect the views and positions of the Council of theEuropean Union.

    G. De Kerchove (&) C. HhnCouncil of the European Union, Brussels, Belgiume-mail: gilles.dekerchove@consilium.europa.eu

    C. Hhne-mail: christiane.hoehn@consilium.europa.eu

    T.M.C. ASSER PRESS and the author(s) 2015T.D. Gill et al. (eds.), Yearbook of International Humanitarian Law 2013,Yearbook of International Humanitarian Law 16, DOI 10.1007/978-94-6265-038-1_10

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  • Contents

    10.1 Introduction ................................................................................................................... 26810.2 The Criminal Justice Approach to the Fight Against Terrorism................................. 269

    10.2.1 Context of the Fight Against Terrorism in the EUand the Member States.................................................................................... 270

    10.2.2 Strategic Reasons for the Criminal Justice Approach.................................... 27110.2.3 The Criminal Justice Response in the Context of the UN

    and the Council of Europe.............................................................................. 27110.2.4 EU Tools to Strengthen the Criminal Justice Response

    to CT in Europe Since 9/11............................................................................ 27210.2.5 EU-US Judicial and Law Enforcement Cooperation Tools ........................... 27610.2.6 Effectiveness of the Criminal Justice Response to Terrorism in Practice ..... 27610.2.7 EU-US Cooperation to Strengthen the Criminal Justice Response

    to Terrorism Around the World...................................................................... 28010.2.8 The Role of the Military in the Fight Against Terrorism.............................. 281

    10.3 The International Legal Framework for the Fight Against Terrorismand the EU-US Legal Advisers Dialogue................................................................... 28210.3.1 The EU-US Legal Advisers Dialogue........................................................... 28210.3.2 Relevant International Legal Issues Related to the Fight Against

    Terrorism ......................................................................................................... 28410.3.3 EU Support to the Closure of Guantnamo ................................................... 28910.3.4 The National Defense Authorization Acts (NDAA) 2012 and 2013 ............ 290

    10.4 Remotely Piloted Aircraft Systems (RPAS) ................................................................ 29110.5 Conclusion .................................................................................................................... 293References ................................................................................................................................ 294

    10.1 Introduction

    The US is the EUs most important partner in the fight against terrorism.1 Strong EU-US cooperation is indispensable to fight terrorism effectively. The EUMember Statesstrongly rely on the US for the fight against terrorism. Since 9/11, many EU-US toolshave been adopted for the fight against terrorism, such as EU-US Mutual LegalAssistance and Extradition Agreements, cooperation agreements between the US andthe EU agencies Europol and Eurojust, EU-US Passenger Name Record (PNR) andTerrorist Financing Tracking Program (TFTP) agreements. The EU is working inparticular with the Department of State, the Department of Justice, the Department forHomeland Security (transport security, prevention of radicalization, foreign fighters,2

    PNR) and the Treasury Department (terrorist financing), as well as with the WhiteHouse. EU-US cooperation on counter-terrorism (CT) capacity building in thirdcountries is strong, as is cooperation in the UN and Global Counterterrorism Forum(GCTF) contexts. Best practices are shared and cooperation is close in challenging

    1 For more details see De Kerchove 2011.2 Persons from Western or other countries travelling to conflict zones, in particular Syria, to jointerrorist groups in the fight there.

    268 G. De Kerchove and C. Hhn

  • areas such as the prevention of radicalization and foreign fighters, which havebecome a serious threat over the past year.Measures to fight the threat to civil aviationhave been aligned and strengthened on both sides of the Atlantic, including related tocargo after the attempted attack by explosives hidden in cargo from Yemen in 2009.Cooperation to fight terrorist financing is strong as well.

    Although the interpretation of international law sometimes differs, the EU and theUS share the view that international law has to be respected in the fight againstterrorism. The EU has expressed concerns about the number of policies adopted inthe context of the so-called Global War on Terror and the global war/armedconflict against Al Qaeda in the legal sense since 9/11. Changes which resulted inmore legal rights for detainees have started to occur during the Bush Administration,such as the so-called McCain Amendment (legislation) clarifying that the prohibitionof cruel, inhuman and degrading treatment also applies extraterritorially, decisionsby the US Supreme Court which extended some legal rights and protections toGuantnamo detainees and the wish expressed by President Bush to close Gu-antnamo. The EU has welcomed further policy changes by President Obama suchas the decision to close Guantnamo within a year, the end of enhanced interro-gation techniques and the end of secret detention. However, divergent approacheson some issues related to the fight against terrorism and some questions remain.

    This article sets out a number of issues related to counter-terrorism and inter-national law since 9/11. Special emphasis is put on the criminal justice approach,the cornerstone of the European CT effort and also one of the most successfulpolicy options used by the US in the fight against terrorism.

    10.2 The Criminal Justice Approach to the Fight AgainstTerrorism

    The EU and the Member States use and promote a criminal justice approach for thefight against terrorism, including Al-Qaeda (AQ) related terrorism. This has notchanged after 9/11. The fight against terrorism is carried out by the civilian actors:intelligence services, which operate outside the EU context, according to Article 4of the Treaty of the European Union; police; law enforcement; judicial actors(investigators, prosecutors, judges) and the prison system. The CT efforts are gearedtowards preventing attacks and investigation and prosecution. It is a task not onlyfor the Ministers of the Interior, but also for the Ministers of Justice.3 Challengesremain, both in the national and the EU context. The criminal justice response hasto adapt to new operating methods of the terrorist groups, such as advocating lone-actor attacks (the most deadly of which was committed in July 2012 in Oslo byAnders Breivik, a Norwegian right-wing extremist who killed 77 people andwounded 151) and traveling to hotspots such as Syria to join terrorist groups there.

    3 See, e.g., CTC 2010.

    10 Counter-Terrorism and International Law Since 9/11 269

  • To improve the criminal justice response across the EU, Directorate-General (DG)Justice is financing a project carried out by the French Ecole Nationale de laMagistrature, in cooperation with the EU CTC and several other EU MemberStates, where since December 2013 European CT investigators, prosecutors andjudges share best practices on challenges such as the terrorism and drugs nexus, useof intelligence as evidence, cooperation of judicial players with intelligence agen-cies, the military and emergency response after an attack. After conclusion of theproject, the EU CTC will bring the outcomes to the attention of policy makers.

    10.2.1 Context of the Fight Against Terrorism in the EUand the Member States

    Before 9/11, a number of EU Member States already had a long history andexperience in fighting terrorism that had produced many victims, including interalia the Irish Republi