As the Council of Europe (CoE) undertakes a crucial review of its legal definition of terrorism, the proposal to align more closely with the European Union’s (EU) definition has raised alarms among human rights advocates. Critics argue that this amendment might conflict with international human rights standards. This contentious issue is further complicated by the perceived heavy influence of the EU’s European Commission and a glaring lack of transparency in the review process.
Transparency and Participation Concerns
Criticism of the European Commission’s Influence
The Swiss government and other entities have voiced apprehensions concerning the European Commission’s prominent and somewhat opaque role in the drafting process. Stakeholders are particularly upset about the limited scope for public consultation and the inadequate engagement of civil society organizations, given the substantial human rights ramifications embedded within the proposed definition. Observers argue that the significant human rights implications necessitate a more inclusive and participatory approach.
This level of involvement by powerful political bodies without broad public discourse fosters an atmosphere of distrust. Civil society actors and governments alike are left questioning the process’s integrity and the genuine consideration of diverse perspectives. It is vital that a definition with such wide-reaching consequences be scrutinized and shaped by a broad spectrum of voices, ensuring that the final legal framework is balanced and just.
The CoE’s Review Process
The Council of Europe initiated its review process in 2022, driven by the closed inter-governmental Committee on Counter-Terrorism (CDCT). By December 2023, the Committee adopted an initial draft that sought to amend the 2005 CoE Convention on the Prevention of Terrorism. Although progressing to an amending protocol by May 2024 marks a significant milestone, the accompanying draft Explanatory Report’s confidentiality continues to fuel concerns over the process’s transparency. Public access to these essential documents is fundamental for a comprehensive evaluation and constructive feedback from all societal sectors.
In November 2024, the draft was sent to the Committee of Ministers for adoption, along with the Explanatory Report. However, Switzerland has notably flagged the missed opportunities for formally submitting human rights concerns for consideration. As the debate intensifies, these procedural shortcomings highlight a pressing question: is the current approach sufficient to address the intricate balance between counter-terrorism measures and protecting fundamental human rights?
Human Rights Implications
Vague and Undefined Terms
One of the most profound human rights concerns lies in the language used within the proposed definition. Specifically, terms such as “seriously destabilize or destroy the fundamental political, constitutional, economic, or social structures of a country or an international organization” are alarmingly vague and undefined. These phrases lack direct precedents within international law, which traditionally serves as a benchmark for drafting such definitions. The result is a framework that exceeds established international standards and poses a high risk of arbitrary application.
By introducing ambiguous terminology, the CoE risks creating a legal tool that could be exploited for purposes beyond its intended scope. This vagueness allows for various interpretations, which can be twisted to fit political agendas, potentially leading to the criminalization of acts not intended to be categorized as terrorism. Such a broad definition could also dissuade legitimate activism or dissent, dampening the vibrancy of democratic debate and protest.
Broad Criticism from Key Bodies
The broad and ambiguous language has not gone unnoticed. It has drawn criticism from key bodies, including the CoE Commissioner for Human Rights, the European Parliament, and the EU Fundamental Rights Agency. These organizations have underscored the potential dangers of the proposed language, particularly the term “destabilizing.” The issue here is that this vague notion could be applied to various minor violent acts, which, although disruptive, do not necessarily amount to terrorism.
Such an extensive and unclear definition risks chilling legitimate activities, undermining fairness, and misclassifying behaviors that international standards do not typically consider terrorism. Legitimate political activism, protests, and other forms of civil expression could be unfairly targeted if seen as causing instability. The crux of these criticisms is to ensure that the term “terrorism” remains tightly defined to avoid encroaching on fundamental rights and freedoms.
Legal Certainty and International Standards
Principle of Legal Certainty
International human rights law is clear on the necessity for precision in criminal laws to prevent arbitrary application and uphold legal certainty. When definitions are broad and ill-defined, as seen in the CoE’s proposed changes, the principle of legal certainty is severely compromised. Criminal laws must provide clear guidelines on what constitutes a criminal offense to protect individuals from misuse of power and arbitrary legal processes.
This broad language coupled with the potential for subjective interpretation, introduces significant human rights concerns. Without precise definitions and clear legal frameworks, individuals and civil society organizations cannot confidently operate, as they might inadvertently fall foul of the law. Lawmakers must ensure that definitions underpinning counter-terrorism efforts are clear, direct, and resistant to subjective misapplication.
Potential for Misuse
The CoE’s membership is broader and encompasses more diverse political systems compared to the EU. This diversity means that there are fewer cohesive regional legal safeguards in place, increasing the risk that certain states might misuse counter-terrorism laws to target political dissent, civil society, and media. This scenario is particularly fraught where states may use ancillary offenses related to incitement and provocation as a pretext to quash opposition and freedom of expression.
Abusive application of counter-terrorism laws could lead to the erosion of democratic norms and open society principles. As such, there is an urgent need for the CoE to establish clear, narrow, and precise definitions that minimize the risk of abuse. States might exploit broad definitions to suppress political opponents, further diminishing democratic processes and the rule of law. Transnational cooperation within the CoE must prioritize upholding human rights, adhering to stringent legal standards, and preventing the misuse of counter-terrorism frameworks.
Conduct Elements and Liability Thresholds
Variability Across States
Another concern central to the debate is the variability in the conduct elements of the proposed definition. Specifically, the variability regarding whether the actus reus elements require intentionality or can be satisfied by objective occurrences could lead to inconsistencies in liability thresholds among the CoE’s 46 member states. Such differences could undermine the predictability and uniformity central to effective transnational cooperation in combating terrorism.
Inconsistent interpretation and implementation could potentially expose individuals to unfair treatment depending on the jurisdiction. Without a unified approach, there is a real danger of extending liability for terrorism to minor or even unintentional acts. Harmonizing the standards across the CoE’s diverse membership is crucial for maintaining a just and effective counter-terrorism regime that respects and upholds the rule of law.
Physical Acts and Severity
Under existing international standards, physical acts, including those targeting properties or objects, should incur liability only if they cause death or serious injury. However, the current draft from the CoE appears to jeopardize this principle by potentially criminalizing less severe acts under its broadened language. This deviation from established standards raises further human rights issues and risks diluting the severity that should underpin terrorism offenses.
Incorporating precision is critical in ensuring that only serious acts with significant consequences fall under the terrorism banner. Criminalizing less severe acts can lead to disproportionate responses and exacerbate the issue of overreach in counter-terrorism legislation. The definition must be carefully refined to ensure that it captures seriousness appropriately without expanding unnecessarily to acts that do not meet the high threshold traditionally associated with terrorism.
Recommendations for Refinement
Objective Contextual Requirement
A notable positive in the proposed definition is the objective contextual requirement. This requirement restricts terrorist offenses to acts which “may seriously damage a country or an international organization.” Such a stipulation helps in setting boundaries and context for what may be considered terrorism. However, to enhance precision and reduce ambiguity, Switzerland has suggested setting a higher threshold by substituting “may” with “in the ordinary course of events seriously damages.”
This higher threshold provides more precise criteria for classifying acts as terrorism, reducing the risk of overbroad interpretations that could undermine human rights protections. The context and nature of possible damage need clearer articulation to avoid misapplication. Greater specificity can ensure that counter-terrorism measures strictly target genuinely harmful acts.
Additional Exclusion Clauses
To mitigate over-breadth, additional exclusion clauses have been proposed. These are crucial for ensuring that legitimate humanitarian and medical activities are not misclassified as terrorism. Such clauses should also safeguard lawful protest, dissent, and industrial action from falling under the terrorism umbrella, provided these activities do not aim to cause serious injury or death. These exclusions are vital in maintaining a balanced approach that respects civil liberties while effectively countering terrorism.
Furthermore, a specific clause protecting acts of resistance against undemocratic attempts to overturn rights-based constitutional orders would offer an important safeguard. By clearly delineating legitimate forms of resistance and dissent from terrorism, the CoE can reassure civil society and maintain robust democratic principles. As the “Strasbourg effect” underscores the CoE’s influence globally, the organization must align its standards with the highest human rights norms.
Conclusion
As the Council of Europe (CoE) is conducting a critical review of its legal definition of terrorism, there’s growing concern among human rights advocates about the proposed changes aimed at aligning it more closely with the European Union’s (EU) definition. Critics argue that these amendments could potentially conflict with international human rights standards, which could lead to significant legal and ethical implications. Furthermore, the issue is being exacerbated by what many perceive as the undue influence exerted by the EU’s European Commission in the process. This influence raises questions about the independence of the CoE in making such pivotal decisions.
Another point of contention is the apparent lack of transparency throughout the review process. Human rights groups are concerned that this opacity limits meaningful public and stakeholder engagement, which is crucial for ensuring that any changes respect international human rights principles. The situation reflects broader debates about balancing security needs against protecting individual freedoms and rights within international and European legal frameworks. As the review progresses, it is essential to maintain a transparent process that incorporates diverse perspectives to ensure that any redefined legal parameters do not undermine human rights.
