During the last week of May a group of Members of the European Parliament (MEPs) took part in an unusual 'sightseeing' visit to the Paris region. The welcome planned by France's interior minister Bernard Cazeneuve included a meeting with top French intelligence officials, a visit to see French special forces and, the highlight of the trip, a demonstration by members of the elite French police unit RAID.
The lucky MEPs on the trip were not chosen at random. The French Ministry of the Interior had carefully invited key figures from various political groups from the Civil Liberties, Justice and Home Affairs committee at the European Parliament, known as the LIBE Committee. At the time these figures were working on a draft counter-terrorism directive; the final version of the committee's draft was subsequently agreed on Monday July 4th.
Ever since the initial plans for a directive were first put forward on December 2nd, 2015, France has been carrying out an intense lobbying campaign to ensure the adoption of this directive, which is supposed to replace the existing one adopted in 2002, and which serves as a framework for EU regulation in the fight against terrorism. This new draft, which is still in the early stages of the European law-making process, will ultimately assume major significance. Moreover, its adoption is now an obligation after a vote by the United Nations' Security Council in September 2014 asking all member states to take a series of measures in the face of new forms of terrorism.
Enlargement : Illustration 1
The aim of the draft directive is to provide uniformity in the legislation of member states by adapting these laws to the evolving challenges of international terrorism. The UN Security Council resolution in particular called on states to fight against the “the threat posed by foreign terrorist fighters” by clamping down on the trips they make, on the financing of their operations and on the recruitment of foreign combatants. These obligations have already been been integrated at European level by a vote of the Council of Europe which, in May 2015, adopted an additional protocol modifying its convention on the prevention of terrorism.
It was against this backdrop that, last December, the European Commission put forward a draft directive incorporating the requests of the UN and the Council of Europe. This draft bill defined terrorist offences linked to a terrorist group or terrorist act. In this context it introduced several new offences such as “public incitement to commit a terrorist act”, one of “recruitment” for terrorism, training for and financing terrorism and also “travelling abroad for terrorist purposes”. The draft legislation also has a major section on compensation for victims of terrorism. For example, member states would be obliged to provide free administrative and psychological support for victims.
However, this initial draft was later significantly toughened at France's express demand. According to several sources the Ministry of the Interior was particularly active in ensuring that new offences, especially those relating to the internet, were included in the new directive. In January member states sent the European Council – the body that represents governments - their proposals, which were then passed to the LIBE committee. This document (see bottom of page) shows that Paris was behind several of the proposals that were later introduced. They correspond, moreover, to measures that have already been adopted in France in recent years. These include reinforcing the crime on glorifying terrorism, and putting in place a way of blocking websites that glorify terrorism. Paris also asked for the creation of a new article on “investigation tools” to reinforce police powers, such as the “interception of communications, discreet surveillance, including electronic surveillance”.
The various proposals by member states show the extent to which France was one of the main drivers of the negotiations, with many states supporting them, while some others expressed reservations. In particular Finland felt that the text on glorifying or praising terrorism was not precise enough and that it could be “problematic with respect to freedom of thought and freedom of expression”. The Finns are also sceptical, for similar reasons, about measures to block access to websites. Sweden, meanwhile, openly rejected the French proposals.
A significant number of the measures put forward by France were later written into the draft directive by the legislation's rapporteur in the LIBE committee, Monika Hohlmeier. In fact, in her report in March the German MEP, a member of the conservative Christian Social Union party, went much further in her proposals. Her plans introduce an internet component to many of the articles. On top of measures to block access to websites and new investigative powers, Monika Hohlmeier also proposes obliging each member state to create a specialist unit charged with detecting illicit content or attacking the so-called 'Darknet', in other words, she says, the methods used for preserving online anonymity such as the Tor network, proxy servers and other “anonymisers”.
While most of the measures in the original version of the directive faced little opposition, the toughening of the text was not to everyone's taste. Members on different sides of the debate on the LIBE committee took part in some lively discussions behind closed doors. For many months the final draft of the directive was thus pushed back week after week.
Vague wording of 'terrorist offences'
The text that was finally adopted by the committee on July 4th was softened very slightly without changing the spirit of the directive. For example, in relation to blocking websites, a new preamble says that the procedure must be supervised by an “independent authority”. This measure is already in force in France and has been criticised here because of the lack of supervision by an independent judge, as the list of sites that can be blocked is drawn up by an administrative body. On this issue the draft directive merely stipulates that the procedure must provide for “guarantees” which “must include the possibility of judicial recourse”.
In fact, nearly all of the measures in the directive already exist in French law. So why would Paris be so keen to push them through at European level? One of the reasons is perhaps that it would allow French law officially to conform with EU law. The many security measures enacted under President François Hollande have indeed led to a number of legal challenges, in particular at European level. These legal challenges, mounted by associations such as the internet civil liberties group Les Exégètes Amateurs, have particularly targeted measures that relate to the internet, such as the blocking of websites by administrative bodies and the capturing of data. The adoption of this directive would deprive these opponents of some of their main legal arguments.
“France wants to be able to claim that its criminal law conforms at European level,” confirms Marco Perolini, a researcher for Amnesty International and a specialist in European issues. “More generally we remain very worried by the arsenal of criminal and administrative measures adopted by France in recent years,” he says. In February Amnesty, the International Commission of Jurists (ICJ) and the non-governmental organisation Open Society-Justice Initiative published a very critical analysis of the draft directive. In includes several of the arguments already heard during Parliamentary debates in France.
“We have two major worries,” says Marco Perolini. “The first concerns the principle of the legality of the offences and the punishments. The directive criminalises new behaviour which is sometimes quite far removed, even very far removed, from the terrorist act itself. There's a criminalisation of offences which up to now have not been terrorist. And using very vague wording,” he continues. “That threatens the principle of legality which protects citizens by stipulating that they can only be convicted under laws that are clear and precise. The second concern is that, in our view, certain offences pertain more to international human rights law, war crimes or crimes against humanity, than to the criminal law. And international human rights law has priority over the criminal law.”
Marco Perolini says they also have concerns about freedom of expression. “Several measures seem to us to be neither necessary nor proportionate. The offence of public provocation, of incitement to commit a terrorist offence, is worded in a very vague way. That's also the case with the measure intended to block websites. Who's going to identify these sites? And on what basis? According to what procedure? Administrative or judicial? France, which has already put this measure in place, has handed this oversight to an administrative authority. In our view that should have come under the jurisdiction of the judiciary as it involves a criminal offence.”
Meanwhile French green MEP and LIBE committee member Eva Joly has expressed satisfaction over some minor advances in the drafting of the directive, in a press release that hints at how lively the debates were on the committee. “In order to illustrate what one has avoided in this area, it seems useful to mention, for example, an amendment put down by Rachida Dati [editor's note, a former French justice minister, from the right-wing Les Républicains party] which sought to make the absence of cooperation by internet platforms in withdrawing unlawful content capable of being considered as an 'act of collusion that can be equated to criminal intent',” said Joly.
Eva Joly also highlights several points that remain “problematic”, such as the “criminalisation of travel which could lead to possible abuses, such as the systematic detention of individuals who have travelled in different countries without valid reasons”. The French MEP adds: “Another problematic aspect concerns the definition of terrorist offences, because they cover intentional acts which result in 'major economic loss'. With such a vague and broad term, many activities risk falling under the effects of the definition 'terrorist offences', in particular some legitimate demonstrations or environmental actions, for example.”
The development of the EU terrorism directive is also being followed closely by the French body that campaigns for digital freedom La Quadrature du Net. On June 20th it published an open letter that was co-signed by some ten associations from around the world. “If the importance of combating terrorism and terrorist propaganda is acknowledged by all, it is essential that measures to address this problem are effective and proportionate measures - while ensuring that restrictions on our fundamental freedoms are offset by very strong procedural safeguards, such as a right of appeal and judicial oversight,” they write. “Government actions and laws should not encourage administrative and private censorship.”
Now that the it has been adopted by the LIBE committee, the draft directive on combatting terrorism will enter a new phase of negotiations known as the 'trilogue'; three-way talks between representatives of the European Parliament, Commission and the Council of Ministers. However, civil liberties groups fear these talks will provide yet another opportunity for member states, including France, to influence the text. These fears have been heightened by the fact that the LIBE committee has given a mandate to Monika Hohlmeier to negotiate directly in the trilogue on behalf of MEPs. That means MEPs will not get to vote on the text again until right at the end of the process. The three-way talks themselves are due to start this summer.
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- The French version of this article can be found here.
English version by Michael Streeter