In this contribution to the Duke Journal of Comparative & International Law symposium on "War Bound by Law," I take the opportunity to discuss European approaches to counterterrorism. I start off by making two preliminary observations. First, while it may be that U.S. authorities have been heavily criticized for not respecting the rule of law because of the detention policies in Camp Delta and Guantanamo Bay and because of the trials before military commissions instead of civilian courts, it is by now very clear that such criticism equally applies to other western democracies, amongst which a number of European states. Countries such as England, Germany, Italy, and the Netherlands have adopted antiterrorism measures that challenge human rights, criminal-justice principles, and due process. Some of these measures will be discussed today.
Second, the emphasis on security, which emanates from the fight against terrorism and challenges due process and human rights, is not a recent phenomenon. It is not solely a reaction to the terrorist attacks in New York, Madrid, and London. These tragic events have increased policy makers' attention to security issues, but attention to such issues existed before these events. Policymakers that govern, and citizens that live, in what may be termed the "risk society," are greatly concerned with security. A risk-free society is a goal that can never really be achieved but that is strived for in a society that attempts to manage and control risks. Antiterrorist measures and their effect on the criminal law, are not new developments, but are merely extensions of existing developments.
One distinctive feature of European anti-terrorism measures is its emphasis on criminal law enforcement. Unlike the United States, most European states have refrained from adopting measures under the laws of war. Therefore, this contribution to the symposium focuses primarily on criminal law measures. In Part I and Part II, I briefly outline some of the anti-terrorism measures that have been taken in the aftermath of 9/11 at the European Union level and at the Member State level, respectively. In Part III and Part IV, I discuss the characteristics of these measures and their effect on criminal law and its underlying principles, respectively. I conclude with a few comments on the relationship between law and terrorism.
I. EUROPEAN UNION AND COUNTERTERRORISM
A. EU Framework Decisions
On September 28, 2001, a few weeks after the terrorist attack on the World Trade Center, the Council of Ministers of the European Union presented two legislative proposals to the European Parliament: one for a Framework Decision on combating terrorism (1) and one for a Framework Decision on the European arrest warrant (2) ("EAW"). The Framework Decision on combating terrorism contains a definition of terrorism that has been implemented at the Member State level and that harmonizes the laws of the member states as to the definition of terrorism. (3) It defines terrorism as
offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:
--seriously intimidating a population, or
--unduly compelling a Government or international organisation to perform or abstain from performing any act, or
--seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation,
shall be deemed to be terrorist offences: (a) attacks upon a person's life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h). …