HomeDOCUMENTSCommittee Reports2002 Annual SessionAV 172 CC(02)9 - General Report. 'Fight against Terrorism: achievements and questions'
General Report. 'Fight against Terrorism : achievements and questions'
General Rapporteur - Rapporteur général : Volker KRÖNING (Germany - Allemagne)
TABLE OF CONTENTS (Page)
I. THE INTERNATIONAL COMMUNITY'S REACTIONS TO THE 11 SEPTEMBER ATTACKS, AN OVERVIEW 1
A. THE UNITED NATIONS 2
B. THE NORTH ATLANTIC TREATY ORGANIZATION 3
C. THE EUROPEAN AND CENTRAL ASIAN COUNTRIES 4
II. STEPPING UP THE FIGHT AGAINST TERRORISM IN EUROPE: THE EUROPEAN UNION ACTION PLAN ON TERRORISM 6
A. MEMBER STATES ANTI-TERRORIST LEGISLATION 6
B. THE EU ACTION PLAN ON TERRORISM 8
1. Justice and Home Affairs measures 9
2. Other measures 11
III. THE QUESTION OF CIVIL LIBERTIES AND HUMAN RIGHTS 13
A. IN EUROPE 13
B. IN THE UNITED STATES 14
IV. ON A FEW IMPLICATIONS OF THE FIGHT AGAINST TERRORISM AFTER 11/09 16
A. THE RECONSTRUCTIVE PROCESS IN AFGHANISTAN 16
B. THE SITUATION IN THE MIDDLE EAST 19
1. The 11 September 2001 terrorist attacks on New York, Washington, D.C. and Pennsylvania were undoubtedly a "transforming moment": not only was their sheer savagery and magnitude unparalleled, with thousands of people dead and many more wounded, but they also revealed in the most dramatic manner how terrorism has evolved and how Western societies have become vulnerable targets. The attacks on US soil apparently carried out by non-State actor al-Qaeda have indeed exposed that hyper-terrorism does not emanate from one country or even one group, but from networks that span the globe, irrespective of national boundaries. They have brought to the fore the growing technological capacity of terrorist groups and individuals to destroy things and people, and the increasing vulnerability of industrialised countries to carefully aimed attacks.
2. To many, these events, whose shockwave continues to ripple throughout the world, changed the agenda of international security and initiated a new era in world politics. Evidence of that lies in the almost universal condemnation of the attacks and in the ensuing building of the US-led coalition against terrorism, which has been remarkable in many respects. It is remarkable, not only because of the large number of countries involved from all around the world - including the United States' NATO allies, as well as Russia, Pakistan, India, China, Japan and Australia, to name but a few - but also because of the recognition that the fight against international terrorism will be a prolonged one. It will be fought on all fronts, internal and external, and US officials have warned that military action against suspected terrorist networks could well continue after the war against al-Qaeda and the Taliban in Afghanistan. President Bush's State-of-the-Union address in Congress in early February 2002 singling out Iraq, Iran and North Korea, while it provoked a full-blown public row between Europe and America, served also to signal a commitment to anticipate future threats.
3. In this report, your Rapporteur will not tackle the war in Afghanistan that began 7 October 2001, as this would fall outside the ambit of the Committee on the Civil Dimension of Security. He will rather examine the political and legal sides of the post-11 September fight against terror, with the aim of highlighting the achievements as well as some of the questions that this fight has raised in Western societies. In a first summary chapter, your Rapporteur will thus make a brief account of the international community's reactions to the 11 September attacks, before looking in a second part at the European Union's Action Plan on terrorism that had been in the pipeline for some time, and whose elaboration under the Justice and Home Affairs pillar was stepped up by the events. The question of civil protection assistance will also be looked at in this context. In a third chapter, he will turn to the issue of respect for basic civil liberties and human rights, which has taken on particular prominence since the September attacks. Finally, he will examine some of the implications of the fight against terrorism, namely the question of the reconstruction of Afghanistan, and the situation in the Middle East.
I. THE INTERNATIONAL COMMUNITY'S REACTIONS TO THE 11 SEPTEMBER ATTACKS, AN OVERVIEW
4. Beyond the immediate transatlantic solidarity provoked by 11 September, with leaders from around the world expressing their "unequivocal support" for the United States, the events of that day prompted moves that your Rapporteur deems necessary to recall for the sake of clarity and further understanding. While the format of the present version does not allow him to make an in-depth study of all responses, he will focus on the reactions of the United Nations and NATO, as well as on those of European and Central Asian countries.
A. THE UNITED NATIONS
5. The delegates will remember by way of introduction that the United Nations, with twelve existing conventions on international terrorism, has been the only international body promoting co-operation in the fight against terrorism on a worldwide scale. In 2000, the UN General Assembly began consideration of an Indian draft of a comprehensive convention on terrorism. While the proposal received wide-ranging support from North America, the United Kingdom and European nations, its finalisation was held up by difficulties in reaching consensus on a universal definition of terrorism. In January 2001, General Assembly resolution 55/158 urged UN Member States to remain committed to the process of drafting the convention, which is expected to eventually include provisions covering acts of nuclear terrorism. Following the 11 September events, at the 56th session of the General Assembly in October 2001 the Ad Hoc Legal Committee was instructed to meet in early 2002 to further elaborate the draft convention. Work was expected to continue on the draft convention until the 57th session. Your Rapporteur wishes to underline that since 11 September, the G8 - which has acted as a forum for the negotiation of all UN conventions on terrorism - has urged all countries to take steps to ratify the conventions and implement their terms immediately, even prior to ratification. It should be noted that only 24 States have ratified all twelve counter-terrorism conventions (Austria, Bolivia, Botswana, Bulgaria, Canada, Chile, Cuba, Denmark, Finland, Grenada, Iceland, Japan, Mali, Netherlands, Norway, Panama, Peru, Slovakia, Spain, Switzerland, Turkey, United Kingdom, United States and Uzbekistan).
6. Reacting to the 11 September events, the UN Security Council in resolution 1368 of 12 September 2001 recognized the inherent right of individual or collective self-defence in accordance with the UN Charter, Chapter VII, Article 51, and "unequivocally condemn[ed]" the attacks as being "a threat to international peace and security". It also expressed its readiness to take all necessary steps to respond to the attacks.
7. Security Council resolution 1373 of 28 September 2001 repeated the "threat to international peace and security" characterisation and went on to impose a requirement on all States to take measures against the perpetrators as well as against States suspected of assisting them. It made the following key points: 1) States should prevent and suppress the financing of terrorist acts: they should prohibit their nationals from making funds, assets, resources, and other related services available to persons who commit or attempt to commit, facilitate or participate in terrorist acts; they should also refrain from providing any form of support to persons or groups involved in terrorist attacks and take the necessary steps to prevent the commission of terrorist acts and deny safe haven to those who finance, plan, support, or commit terrorist attacks; 2) States should ensure that terrorist acts are established as criminal offences under domestic law and that adequate penalties are levied for such acts; 3) States should increase their efforts towards bilateral and multilateral co-operation and the exchange of information regarding the movements of terrorist groups; they should also afford one another the greatest measure of assistance for criminal investigations or proceedings relating to terrorism; and 4) States should become parties to, and fully implement as soon as possible, the relevant international conventions and protocols to combat terrorism, which your Rapporteur has referred to above.
8. Resolution 1373 also noted the close connection between terrorism and organized crime, including drug and arms trafficking and money laundering, and established a Counter-Terrorism Committee (CTC) to monitor implementation of the resolution. The Committee aims to upgrade the global capability to deny space, money, support or haven to terrorism, and focuses on ensuring that all States have in place the necessary legislative and executive machinery to take action against terrorism. At the time of updating the present report, the great majority of UN Member States had submitted primary reports on their implementation of the provisions of resolution 1373; some had begun to submit secondary reports. These reports were being analysed by the Committee, which had also taken steps to facilitate dialogue with States and relevant international and regional organisations through the publication of a directory of contact points. An online directory of sources of advice and expertise in the areas covered by resolution 1373 had also been designed to assist governments.
9. Contrary to what has sometimes been suggested, the Security Council has not authorised the United States to use military force, in the way that resolution 678 (1990) had authorised "States cooperating with the government of Kuwait" to use force against Iraq. As mentioned, resolution 1373 required all States to take economic and political measures. The United States relied on its right of self-defence enshrined in UN Charter Article 51 to defend the legality of its actions. The exercise of this right requires no prior authorisation from the Security Council. The references to self-defence in resolutions 1368 and 1373 were not, therefore, necessary to enable the US to justify military action in Afghanistan, although they undoubtedly served to strengthen the argument that the conditions for the exercise of that right had been met.
10. Finally, it is worth noting that under the auspices of the UN system, the International Atomic Energy Agency (IAEA) has expanded its ability to review the security of nuclear facilities; the International Maritime Organization (IMO) has put forward twelve proposals aimed at decreasing the likelihood of maritime terrorism to improve maritime safety and security; and the Office for Drug Control and Crime Prevention (ODCCP) operates a special database on terrorism, researches trends in terrorist activity and assists countries in upgrading their capacity to investigate and prevent terrorist acts. Since 11 September, UN terrorism prevention experts have provided advice to the IAEA and the Organization for the Prohibition of Chemical Weapons (OPCW), and to national governments seeking to incorporate international treaties against terrorism into domestic law.
B. THE NORTH ATLANTIC TREATY ORGANIZATION
11. On 12, 13 and 14 September 2001 the North Atlantic Council, the NATO-Russia Permanent Joint Council and the NATO-Ukraine Commission unconditionally condemned the attacks on the United States. Despite the failure of the US to provide evidence against Osama bin Laden, the Alliance invoked Article 5 just over 24 hours after the events. Article 5 pledges that an attack on one ally shall be considered an attack on all and commits all Members to take "such action as [they deem] necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area".
12. The delegates will remember that the meaning of Article 5 was briefly debated during the 1990 Gulf War, when some Europeans questioned whether the commitment would apply to an Iraqi attack on NATO Member Turkey in response to coalition air strikes from Turkish territory, and that the question was never formally answered, as the attack on Turkey never took place. Following the 11 September events, with very little public or official debate, NATO interpreted Article 5 to include a terrorist attack on a Member State. This decision was accompanied by European insistence that the US consult with its allies before taking action.
13. While it became clear in the days following the events that the United States did not want to run the Afghanistan campaign as a collective military response under the North Atlantic Council and the Supreme Allied Commander Europe (SACEUR), the White House nevertheless wanted to make more of Article 5 than a symbolic commitment. In early October 2001, it presented NATO Allies with a request that they take specific measures, individually and collectively, to support the American campaign. On 4 October, after receiving credible proof from US officials that the 11 September attacks were sponsored from abroad, NATO Allies agreed to the US request. They undertook the following measures to aid the campaign against terrorism in Afghanistan and the initial strikes against al-Qaeda bases: 1) to enhance intelligence sharing and co-operation, both bilaterally and within NATO; 2) to provide blanket over-flight clearances for US and other NATO aircraft, in accordance with the necessary air traffic arrangements and national procedures, for military flights related to operations against terrorism; 3) to provide assistance to Allies and other States, which might be subject to increased terrorist threats as a result of their support for the campaign against terrorism; 4) to take necessary measures to provide increased security for US facilities in Europe; 5) to backfill selected Allied assets in the NATO area that might be required elsewhere for the campaign against terrorism; and 6) to provide access for the United States and other Allies to ports and airfields on the territory of NATO nations for operations against terrorism, including for refuelling, in accordance with national procedures.
14. NATO did not subsequently participate in the initial Enduring Freedom strikes against al-Qaeda bases that started on 7 October 2001, apart from the deployment of the Alliance's airborne warning-and-control systems (AWACS) to US airspace, releasing American AWACS for duty in Afghanistan, and for the deployment of its Standing Naval Forces to the Eastern Mediterranean.
15. Since 11 September, NATO has used its standing policies and structure to maintain a clear focus on suppressing terrorist activity, also encouraging enhanced co-operation in non-proliferation and missile defence. While the NATO-Russia relationship lies outside the bounds of this report, your Rapporteur would like to point out that since the events NATO and Russia have launched a broad range of counter-terrorism initiatives including: regular exchange of information and in-depth consultation on issues relating to terrorist threats; the prevention of the use by terrorists of ballistic missile technology and nuclear, biological and chemical agents; civil emergency planning; and the exploration of the role of the military in combating terrorism. These initiatives have been reinforced since the establishment of the NATO-Russia Council in late May 2002. NATO has also pledged to fully implement resolution 1373 and to encourage international co-operation to combat terrorism with the EU, the OSCE, the G-8 and international financial institutions such as the Financial Action Task Force based at the OECD. NATO has also been preparing a new package of measures to strengthen its capacities against the threats of terrorism and Weapons of Mass Destruction, which will be presented at the Prague Summit in November 2002.
C. THE EUROPEAN AND CENTRAL ASIAN COUNTRIES
16. Although the United States enjoyed considerable sympathy in the aftermath of the attacks, European support has not been unconditional. With more than 15 million Muslim residents in EU countries, and given their own painful experiences with Islamic extremist terrorism, Europeans have been especially adamant to underline, as German Chancellor Gerhard Schröder did in his Bundestag speech of 19 September 2001, that the West was "not in a war against the Islamic world". Stressing the need for "legitimacy" for the US response, many Europeans were concerned that the United States would seize this opportunity to attack Iraq, and made clear from the outset that the response to the September attacks should be "proportional". Perhaps most significantly, Europeans stressed the importance of renewed engagement to resolve regional problems such as the Israeli-Palestinian conflict, if terrorism is to be eliminated.
17. Critics were quick to highlight that under the spur of the 11 September crisis, the European Union proper proved a rather weak reed. Expectations in Brussels that European allies would increasingly choose to act through the EU rather than NATO, or through bilateral relations with the United States, swiftly faded as nation States - not EU institutions - took the political lead in the military reaction to the September attacks. Given the controversy aroused by the EU's plan to create its own 60,000-strong Rapid Reaction Force (RRF) by 2003 (in the month after the 11 September attacks, the London-based International Institute of Strategic Studies published a report warning that the RRF was "unlikely" even to be assembled, let alone trained or fit for deployment, by the target date of 2003) and aside from the EU Action Plan on terrorism that your Rapporteur will examine below, the EU played a modest role in the war on terrorism as a military or even diplomatic institution. Its response has focused essentially on addressing the humanitarian plight in Afghanistan.
18. Britain, which instantly offered its support to the United States, took part in the first cruise missile and air attacks on Afghanistan and offered to commit its SAS Special Forces, along with 4,200 other specialist troops and Royal Marines. This triggered a Dutch offer of marines, while France offered reconnaissance aircraft and special forces, and Italy and Spain their mountain troops; as for Chancellor Schröder, he was able to secure a clear majority in the Bundestag to commit German forces to a role that went far beyond peacekeeping. During the two months following the terrorist attacks on New York, Washington, D.C. and Pennsylvania, these national reactions were not tightly co-ordinated. The meeting with Messrs Blair, Chirac and Schröder on 19 October in the margins of the extraordinary EU Council in Ghent served to underscore the split between European States. The somewhat broader meeting in London on 4 November, with six countries plus the Belgian Presidency and Common Foreign and Security Policy High Representative Javier Solana, did little to help alter the impression.
19. American-led operations against al-Qaeda and Taliban positions in Afghanistan have made extensive use of Central Asian territories, with Uzbekistan, Kazakhstan, Kyrgyzstan and Tajikistan allowing the US and its allies use of their airspace. Uzbekistan was the first country in the Commonwealth of Independent States (CIS) to pull out of the Collective Security Treaty, and to allow American and coalition forces the use of its air base in Tashkent. The Status of Forces Agreement of 11 December 2001 granted the United States access to Kyrgyzstan's Manas International Airport, while a similar agreement was reached with Tajikistan on its Kulob air base. Only Turkmenistan, which played an active role in mediating previous Afghan conflicts and is not a member of CIS's Collective Security Treaty, has maintained its neutral status, allowing only humanitarian aid to cross its territory. Central Asian countries were also quick to offer intelligence to Western forces on terrorist organisations in the region, and actively participated in the search for al-Qaeda suspects.
20. Motivations for Central Asian countries' support to the US are several-fold. While participation in the war against terrorism has raised their political and economic profile in the eyes of the West, they are also in desperate need of a solution to their own terrorism problems. The Islamic Movement of Uzbekistan (IMU), for instance, has been particularly active in Uzbekistan and Kazakhstan, forcing the closure of borders and handicapping trade. Since 11 September, the US - which has placed IMU on its list of terrorist organizations - has additionally targeted IMU bases in Afghanistan. The Organization for Security and Co-operation in Europe (OSCE) has, furthermore, pledged to take greater responsibility for assisting in the fight against terrorism in the region (see the OSCE Bucharest Plan of Action for Combating Terrorism, confirmed in mid-December at the Bishek International Conference on Enhancing Stability and Security in Central Asia).
21. Amnesty International has suggested that the Central Asian countries are unduly profiting from their involvement in the Afghanistan war effort and shifting attention away from their poor human rights records and crackdown on political opponents. Conversely, while they have long criticised the Central Asian regimes, the United States and its allies would seem to be ignoring human rights abuses in return for Central Asian support in the war against terror. Like Amnesty, your Rapporteur is of the opinion that the co-operation of Central Asian countries "must not be used as a justification for accelerating those countries' own repressive agendas" (see Amnesty's Report Central Asia: No Excuse for Escalating Human Rights Violations, October 2001).
II. STEPPING UP THE FIGHT AGAINST TERRORISM IN EUROPE: THE EUROPEAN UNION ACTION PLAN ON TERRORISM
22. Having taken stock of the overall reaction to the 11 September attacks, your Rapporteur will now look at the EU Action Plan on terrorism that had been in the pipeline for some time, notably under the auspices of the Justice and Home Affairs (JHA) Council and the Commission's Directorate-General for JHA, and whose elaboration was hastened by the attacks. The events have indeed demonstrated the urgent need for a common understanding, not only politically but also legally, of what terrorism means, in order to facilitate trans-border co-operation and to overcome burdensome - and somewhat obsolete - extradition procedures. Similarly, the events have pointed to the necessity of making headway on the reinforcement of co-operation to ensure better protection of people and deal with the consequences of nuclear, radiological, biological and chemical (NRBC) attacks.
23. Prior to the Action Plan, however, your Rapporteur deems it necessary to review the EU Member States' legislation on terrorism, as there is hardly a country in Europe that has not been affected, either directly or indirectly, by terrorist activity. In so doing, he is confident that one can benefit from examining the lessons others have learned in their own struggles.
A. MEMBER STATES' ANTI-TERRORIST LEGISLATION
24. The delegates will remember that over the last ten years, Europe has experienced an increase in terrorist acts within its borders, ranging from murder, bodily harm or threats to people's lives, to kidnapping, hostage-taking and the destruction of property or damage to public or private facilities. France has endured bombings linked to GIA militants; Northern Ireland was home in August 1998 to the Omagh bombing by dissident Real IRA; Italy still suffers under the Red Brigades (the group behind the murder of Professor Marco Biagi in Bologna in April 2002); Spain under the terrorist group ETA; Turkey under the Workers' Party of Kurdistan (PKK); and Greece under the small but deadly November 17 Group, which takes its name from 17 November 1973 when the military regime crushed a student revolt at Athens polytechnic university and which has claimed responsibility for more than 20 murders of foreign diplomats, American servicemen and Greek businessmen. At the time of updating the present report, 17 November officials had threatened to start taking hostages if their comrades currently in custody were not given a proper trial.
25. The majority of EU Member States do not have specific legislation on terrorism. In Austria, Belgium, Denmark, Finland, Luxembourg, the Netherlands and Sweden, terrorist offences are punished as common offences. France, Germany, Italy, Portugal, Spain and the United Kingdom on the other hand, have, to different degrees, specific legislation on terrorism, where the words "terrorism" or "terrorist" are expressly mentioned and (some) terrorist offences expressly typified. Interestingly, the most populated EU Member States are listed under this second category. Your Rapporteur, aware that the format of this report does not allow him to make an in-depth study, will try to draw out the main features of these laws.
26. Concerning the definitions of terrorism and acts of terrorism that France, Italy, Portugal, Spain and the United Kingdom have adopted, they differ considerably in wording and scope. Three main criteria are worth noting however, not all of which are included in each definition. An act may be defined as an act of terrorism if: it constitutes a threat to law and order and public peace (France, Italy and Spain); it affects the proper functioning of government and institutions (Portugal, Spain and the United Kingdom); it intimidates persons or groups of persons (Portugal and the United Kingdom). The British and Italian laws aim, moreover, to target the preparatory activities of terrorists by extending their very definitions of terrorist activity to include foreign and international terrorist organisations and States. The United Kingdom's Terrorism Act 2000 in particular, which was intended as permanent legislation and is not subject to routine review, made it easier for police and prosecutors to initiate action against all involved in terrorism by listing proscribed groups.
27. Furthermore, specific investigation provisions and derogations to ordinary law are provided for concerning: search provisions (France, Germany and the United Kingdom); phone tapping provisions (France, Germany, Italy, Spain and the United Kingdom); police powers with regard to arrest and custody (France, Germany, Italy, Spain and the United Kingdom); and special measures for police informants and public authorities (France, Italy, Portugal, Spain and the United Kingdom). The United Kingdom's Anti-Terrorism, Crime and Security Act 2001 requires that communication service providers retain data about their customers' communications for access by law enforcement agencies. Moreover, it clarifies and extends a number of existing gateways for disclosure of information from public authorities to agencies involved in criminal investigations and proceedings. The gateways will ensure that public authorities can disclose certain types of otherwise confidential information where necessary for the purposes of fighting terrorism and other crimes in the United Kingdom and abroad.
28. Given the differences between the detention provisions, it is rather difficult to establish any common features. The French counter-terrorism legislation allows for the detention and questioning of persons suspected of supporting terrorist networks in France and abroad for four days without counsel; once charged, suspects can be held for up to four years before trial. Italy allows for custody during preliminary investigations for a period that was extended from 18 to 24 months in May 2001. Under the Spanish Penal Code, terror suspects can be held for three days, a period which can be extended for an additional 48 hours by judicial order; in contrast to other European States, suspects in Spain may be blindfolded, hooded, and held incommunicado and without choice of counsel. In the United Kingdom, the Anti-Terrorism Act 2001 allows for internment without trial of those the Secretary of State has certified as threats to national security; the Act also contains a five-year "Sunset Clause" (to allow for a review of the justification and necessity of particular provisions) on provisions to detain suspected international terrorists who pose a threat to national security but cannot currently be removed from the UK.
29. The delegates will remember that in the EU there are no special courts to try terrorist acts, except in Ireland. However, there may be provisions on the specific composition and operation of courts in terrorist cases (France, United Kingdom). Cases may also be centralised in a single court at the national level (France, Spain). France's Cour d'assises has dealt with all terrorism-related cases since the deadly bombings in Paris in 1986 and is currently hearing several cases relating to threats against American interests in France.
30. Establishing any common features between the sentences imposed by the Member States is also almost impossible. Terrorist offences can carry a maximum of 30 years imprisonment in France, while in Italy, since October 2001, the punishment for the promotion, organisation, direction and financing of terrorist activity directly, indirectly or through association, ranges from 7 to 15 years, with 5- to 10-year sentences applicable for participation in the criminal category of "association with the aim of international terrorism". Portugal has a maximum prison term of 25 years. Sanctions in Spain can reach 30 years, with an average of 20 years imprisonment for terrorist acts that include arson and destruction of property, and 10 to 15 years for kidnapping; the crime of collaboration with a terrorist group carries a penalty of 5 to 10 years with extended sentences for actions that result in serious harm.
31. Following the 11 September attacks, France activated its Vigipirate plan, deploying reinforced security services, gendarmerie and military forces at airports, national border crossings and strategic public and official sites throughout the country. In late October 2001, the French National Assembly approved a series of antiterrorism amendments to its Loi sur la sécurité quotidienne (Daily Security Bill) of 2000, which give the police expanded powers to heighten security in public places, search private cars and monitor communications. The amendments incorporate the measures of the Loi sur la société de l'information (Information Security Bill) proposed originally in summer 2001, which permit among other things the access and surveillance of telephone and Internet communications and allow the retention of mobile phone and Internet logs. The amendments will remain in force until 31 December 2003.
32. While launching its own nationwide civil emergency plan, Germany - where terrorists involved in the 11 September events resided - approved a first anti-terrorism package on 19 September. The package provides for the overhaul of the country's law enforcement bodies and security services and allows for the prosecution in Germany of people suspected of belonging to groups classified abroad as terrorist. The parliament passed a second anti-terrorism package in December 2001, which earmarked an additional 3 billion marks (1.5 billion euros) in the 2002 federal budget for the fight against terrorism including extra funding for intelligence agencies, the armed forces, the Federal Border Guard and the Office of the Prosecutor-General at the Federal Supreme Court. Also approved in December was an amendment to the law on associations effectively repealing the clause granting special protection to organisations describing themselves as religious communities. Under that change, the authorities launched an immediate crackdown on radical Islamist groups, over 20 of which were banned.
33. Since the events, Italy has reinforced and intensified the activities of its "Crisis Unit" at Palazzo Chigi (Prime Minister's office) and "Public Order and Security Committee" at the Interior Ministry, while a special co-ordination structure has been created at the Foreign Ministry. In October 2001, the government adopted counter-terrorism measures that, inter alia, envisage the possibility of undercover activities, whereby there would be no sanctions against agents whose actions are covered by previous judicial authorisation.
34. Finally, in accordance with, notably, the UN Security Council resolution 1373 and the eight Special Recommendations of the Financial Action Task Force, European countries have also taken measures to freeze assets and combat money laundering to counter the financing of terrorism (see, e.g., Germany's Fourth Financial Market Promotion Act; the establishment in Italy of the Financial Security Committee and the extension to anti-terrorism activities of the regulations that govern organised crime; and the relevant provisions of the UK's Anti-Terrorism Act 2001). In April 2002, according to estimates from the European Commission, European countries had frozen 124 million euros in suspected terrorist assets since 11 September; US sources estimated on their part that the European countries had frozen nearly 40 million euros (US$ 35 million), a figure equal to the assets blocked by the United States.
B. THE EU ACTION PLAN ON TERRORISM
35. Your Rapporteur will recall by way of introduction that on 21 September 2001 an extraordinary meeting was convened by the European Council in Brussels in response to the 11 September crisis. In its conclusions, the Council noted that the European Union "will step up its action against terrorism through a co-ordinated and interdisciplinary approach embracing all Union policies", notably through the adoption of a Plan of Action on terrorism.
36. The Plan includes measures to enhance police and judicial co-operation, develop international legal instruments, combat the funding of terrorism, strengthen air security, and co-ordinate the EU's global action. The majority of actions should take place under the third pillar (Justice and Home Affairs), with implications for policies in the first (Community) and second (Foreign and Security Policy) pillars and for cross-pillar co-operation. Given the format of the present report, your Rapporteur has chosen to lay emphasis on the Justice and Home Affairs measures and to refer to some of the other measures that have been agreed upon following the September attacks on the United States.
1. Justice and Home Affairs measures
37. The European Council's extraordinary meeting on 21 September gave the necessary political support to two Framework Decisions that had been drafted by the Commission's Directorate-General for JHA prior to the 11 September events, on: 1) the approximation of Member States' criminal laws with a view to establishing a common definition of acts of terrorism and to laying down common criminal sanctions; and 2) the creation of a European arrest warrant. The Framework Decision on a common definition of acts of terrorism, which was agreed to at the JHA Council meeting in Brussels on 6 December 2001, was confirmed together with the Framework Decision on a European arrest warrant at the European Council Summit of Laeken in mid-December. Both Decisions were formally approved at the JHA Council in Luxembourg on 13 June 2002.
a. Harmonising anti-terrorism legislation
38. The common definition of acts of terrorism that was adopted by European Justice Ministers on 6 December encompasses: intentional actions which, by their nature and content, may be seriously damaging to a country or international organisation when the author of such acts commits them in the aim of seriously intimidating a population or unduly compelling the public authorities or an international organisation to accomplish or to refrain from accomplishing an act of some kind; or again action that gravely destabilises or destroys fundamental political, constitutional, economic or social structures of a country or of an international organisation.
39. This must be on condition that the action in question is included in the following list: 1) attacks on the life of a person; 2) serious attacks on the physical integrity of a person; 3) hostage-taking; 4) mass destruction; 5) the seizing of aircraft or ships; 6) the manufacture and acquisition of weapons of all kinds; 7) the causing of fires or flooding that result in danger to lives; 8) damage to the supply of water or electricity placing lives in danger; and 9) the threat that such action will be carried out.
40. Your Rapporteur wishes to point out that this definition was vigorously opposed by a number of civil society groups and individuals, particularly those representing the human rights and anti-globalisation movement who feared that some of the measures taken by the EU could infringe certain basic civil liberties (see also III. below). The text, in its preamble, thus specifies that the Framework Decision cannot be used against the free exercise of the right of expression, to demonstrate or to take part in a trade union.
41. Concerning the level of sanctions decided, the delegates will remember that a compromise solution was struck, whereby Member States would undertake in their legislation the inclusion of a prison sentence of at least 8 years for participation in a terrorist group, and at least 15 years for leading a terrorist group, as well as heavier penalties than usual for other infringements committed in relation to terrorist action. Under the Spanish Presidency, however, this so-called minimum/maximum system was very much criticised by Austria, Germany and Denmark, and to a lesser extent by Finland and Sweden, who considered it too inflexible and a threat to the coherence of their own national legal order. At the JHA Council of 25 and 26 April 2002 in Luxembourg, European Justice Ministers decided to fix the minimum level of punishment for an offence or crime within a range counted in years, as follows: for a category 1 offence, each Member State should include in its legislation a penalty of between at least 1 and 3 years; category 2: between 2 and 5 years; category 3: between 5 and 10 years; and category 4: at least 10 years.
42. It should be noted that Member States are expected to bring their legislation into conformity with these measures by 31 December 2002.
b. A common European arrest warrant
43. Despite significant pressure from the Belgian Presidency, an agreement on the Commission's proposal for a European arrest warrant failed to materialise at the JHA Council meeting of 6 December. Italy objected to the broad range of offences covered under the proposal, preferring to limit the scope of the warrant to terrorism and terrorism-related infringements (organised crime, drugs trafficking, arms trade, trade in human beings). An agreement was reached in mid-December, which was approved by the European Parliament in early February 2002.
44. The European arrest warrant will apply to all offences. In practice, the judiciary of each Member State will be able to issue a European arrest warrant when a person is prosecuted for an offence punishable by a custodial sentence of over a year, or when the person has been sentenced to custodial or detention order exceeding four months. When an arrest is carried out on the basis of a European arrest warrant in a Member State, the person will be handed over by the judiciary of the State where the arrest has taken place pending minimal control over a maximum period of three months. For a list of 32 serious offences (terrorism, participation in a criminal organisation, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in arms, ammunition and explosives, corruption and fraud, etc.), the surrender of the person will not require the verification of the double criminality of the act - which requires that the facts which motivated issuing an arrest warrant are also incriminated in the Member State where the surrender is to be carried out.
45. The European arrest warrant will not enter into force officially before 1 January 2004, giving enough time to Member States - particularly Austria, Greece and Italy - to modify their Constitution and integrate the new procedure into their national legislation. However, six European countries (Belgium, France, Luxembourg, Portugal, Spain and the United Kingdom) decided in mid-February 2002 that they will apply the new procedure as early as the first half of 2003.
c. Police and judicial co-operation
46. The delegates will remember that Europol's mandate was extended to increased specialisation in counter-terrorism on 6 December 2001. A special anti-terrorism unit has since been established within the organisation and is financed through a supplementary budget for 2002 of more than 3 million euros. At the Council of 25 and 26 April 2002, European Justice Ministers further agreed to amend the Europol Convention to strengthen its role and enable it to participate in joint investigative teams. This allows Europol to ask Member States to initiate investigations into specific cases but falls short of granting the organisation independent coercive powers. Work was underway in the Council at the time of updating the present report, on how to implement the decision, while contact points within Member States' police forces had already been identified to ensure systematic communication and co-operation with Europol.
47. Concerning judicial co-operation, mention should be made of the central network Eurojust, whose creation was approved early this year. Adopted on 28 February 2002, the Decision setting up Eurojust in The Hague entered into force on 6 March, putting an end to the Pro-Eurojust provisional unit that had been working in Brussels since March 2001. Eurojust members have gradually replaced Pro-Eurojust members and the Eurojust team, composed of one team (prosecutor, judge, police officers with prosecuting powers) per Member State, has been complete since early June. In mid-July, the JHA Council approved the nomination by the members of Eurojust of their president (British national Michael Kennedy, Chief Crown Prosecutor) and vice-presidents (French national Olivier de Baynast, Advocate General with the Court of Appeal in Versailles, and Spanish national Ignacio Pelaez, Prosecutor for the High Court of Justice). Eurojust will smoothe the way and help co-ordinate the investigation and prosecution of serious cross-border crime. It will facilitate contacts, co-operation between magistrates and the discovery of links between cases and investigations in progress in different EU countries; it will also assist in contacts with third countries such as the United States.
48. Your Rapporteur wishes to point out that in mid-May 2002, Member States agreed to a proposal by the Spanish Presidency on the exchange of information between Europol and Eurojust about terrorist infringements. At the time of updating this report, negotiations on a co-operation agreement between the two offices were in progress.
d. Co-operation with the United States
49. The delegates will remember, here again, that a first co-operation agreement between Europol and the United States was signed on 6 December 2001 that covers strategic and technical information exchange (trends and methods of crime, methods to fight crime, methods of analysis, etc.) and provides for contact points to be designated for co-ordinating this co-operation. The exchange of data on private individuals is the subject of a second and more difficult agreement that the two parties hope to conclude by the end of this year. It should be noted that an agreement between Europol and the United States is at the final preparation stage on the exchange of data on private individuals specifically related to the 11 September attacks. A Europol liaison office within the European Commission Representation in Washington D.C. started operating 1 August 2002.
50. At the JHA Council on 25 and 26 April 2002 in Luxembourg, Justice Ministers gave the go-ahead for negotiations on an extradition and judicial co-operation agreement with the United States. Your Rapporteur wishes to indicate, however, that this initiative is complicated by European sensibilities about American use of the death penalty and a different attitude towards the use of personal information. According to the mandate approved by the Council, no judicial assistance (transmission of evidence) will be provided and no extradition accepted if the person faces capital punishment. It is also planned that extradition, like legal assistance, could be refused if the person is to be judged by a special tribunal. Discussion will focus on the acceleration of judicial procedures, joint investigation teams, appointments of contact points for information exchanges and videoconferencing for witnesses. This rather complex agreement could be concluded at the end of this year or at the beginning of next year.
2. Other measures
a. Terrorist financing
51. During the extraordinary meeting in Brussels on 21 September 2001, European Finance Ministers agreed to pursue measures combating terrorist financing. They specifically mentioned the need to push through the draft Directive on the prevention of the use of the financial system for money laundering, and to broaden the scope of the Framework Decision on freezing assets. On 2 October, the European Commission proposed a regulation that aimed to cut off terrorist financing by freezing the assets of a certain number of individuals and organisations. This regulation was adopted by the General Affairs Council in late December 2001 and updated on 2 May 2002 to include a list of international terrorist organisations and individuals whose assets would have to be frozen.
52. Your Rapporteur would like to point out that the debate was particularly heated concerning the elaboration of the European list of terrorist groups. The declarations made by a Commission spokesperson in late November 2001 hinting that no democratically elected political party would be included on the list caused a stir in Spain, which aimed at having ETA's political wing, Batasuna, included. Through the written procedure, on 27 December the Council drew up two lists of organisations and individuals designated as terrorists. The first list included: ETA and its affiliated groups; the Irish groups Continuity Irish Republican Army (CIRA), the Real IRA and four Protestant groups; three Greek organisations; as well as Hamas-Izz al-Din al-Qassem (the terrorist branch of Hamas) and the Palestinian Islamic Jihad. The second list specifically designated terrorists linked to the Taliban and al-Qaeda network.
53. On 2 May 2002, eleven groups were added to the list of terrorist organisations, including: Askatasuna (linked to ETA); the Workers' Party of Kurdistan (PKK) and the Kurdish Popular Revolutionary Party (DHKP-C); Gama'a al-Islamiyya (Islamic movement of Egypt); Aum Shinrikyo (responsible for the sarin gas attack in the Tokyo metro); Shining Path (Peru); and the United Self-Defence Forces of Colombia. Further discussion has taken place since then, with Spain insisting on the inclusion of Batasuna and the Revolutionary Armed Forces of Colombia (FARC) on the list. FARC was added in mid-June. On 9 September, Spanish Justice Minister José Maria Michavila indicated that Spain will ask for Batasuna to be placed on the list once the party is banned in Spain.
b. Civil protection
54. Relatively little attention had been paid by the EU to civil protection prior to 11 September and the use of anthrax against civilians. The issue has gained significant ground over the past months however, with Member States pointing to the need to make headway on the reinforcement of co-operation to ensure better protection of people and to deal with the impacts of nuclear, radiological, biological and chemical terrorist attacks.
55. It should be noted that national authorities at all levels have been prompted to re-consider how ready and able they are to prevent or mitigate the impact of these threats. In September 2001, President Bush created the Office of Homeland Security in the White House to co-ordinate the federal government's homeland security activities, and in June 2002 he proposed the creation of a Department of Homeland Security, the first new executive department since the establishment of the Department of Veterans Affairs in 1989. Similarly, European governments have embarked upon a review of how NRBC threats are addressed at national level (see, for instance, the Sixth Report of Session 2001-02 of the House of Commons Defence Committee, or the plan developed by Italy in June 2002 to deal with NBC attacks). Your Rapporteur will not make an account of these reviews in the present report. He would rather propose that they be the basis for next year's General Report.
56. The delegates will remember that the European Council in Ghent (19 October 2001) mandated the Commission and Council to draft an EU civil protection programme to improve co-operation between Member States in preparedness, detection and intervention to reduce the consequences of NRBC threats to the territory of the Union. The programme is described in the Commission Communication Civil Protection - State of preventive alert against possible emergencies of 28 November 2001, which is supplemented by the Communication on Civil Protection - Progress made in implementing the programme for preparedness for possible emergencies of 11 June 2002. These make clear how the various services and networks responsible for civil protection, health protection and research expertise within the Commission have been brought under one heading.
57. A Civil Protection Mechanism, whose creation had been proposed by the Commission in September 2000, was adopted by the Council on 23 October 2001 and entered into force on 1 January 2002. It comprises five principal elements, including: 1) a 24-hour Monitoring and Information Centre, operational since late October 2001, which tracks and supplies information on experts and human resources in member, accession and candidate countries; information on NBC expertise and on the immediate access to information on serum and vaccines is collected and co-ordinated through the Centre; 2) taking stock of civil protection/emergency service interventions teams in each Member State; 3) a training programme, dispatched to national training institutes for implementation and preparation for full-scale simulation exercises; 4) the mobilisation of assessment and co-ordination teams available for immediate deployment; and 5) a common emergency communication system between relevant Member State and Commission authorities in the area of civil protection.
58. Since the 11 September crisis, the Commission has also been working to develop interfaces between the Civil Protection Mechanism and the health sector. It has set up a joint task force with the pharmaceutical industry to draw up an inventory on availability and capacity for production, stockpiling and distribution of serums, vaccines and antibiotics likely to be needed in the event of bacteriological attack. At the request of the Commission, the European Agency for the Evaluation of Medicinal Products has set up two working parties, to compile a guide on the use of medicines for potential pathogens and to draw up specific recommendations on vaccines, including smallpox vaccines. Furthermore, the Commission has been developing an action programme that will specifically address the health-related threats associated with biological and chemical attacks. Work is also being done in co-ordination with third countries and international organisations such as the World Health Organisation, to publish rules and advice on health measures to be taken in the event of such attacks.
III. THE QUESTION OF CIVIL LIBERTIES AND HUMAN RIGHTS
59. The struggle faced by Western countries in trying to protect against terrorist assault requires a delicate balance, not always easy to achieve, between deploying political, policing, and military capabilities to maximum effect while trying to prevent these same security measures from adding to the disruption caused by the terrorists themselves. In this third chapter, your Rapporteur deems it necessary to examine the question of civil liberties and human rights, which has taken particular prominence with many in Europe and the United States denouncing the erosion of, or scant attention being paid to, respect for basic human rights since 11 September.
A. IN EUROPE
60. In January 2002, in a document entitled The Human Rights Agenda for the European Union in 2002, Amnesty International criticised the Spanish Presidency for not having included "a clear and unambiguous human rights perspective" amongst the priorities of its mandate. Shocked that human rights appear to have moved backstage altogether as security dominates the agenda, Amnesty recommended, inter alia, that the Spanish Presidency: 1) sees to it that the EU and Member States ensure that any measures adopted to guarantee security are in full compliance with international human rights law and standards, including the EU Charter of Fundamental Rights; and 2) that a meaningful content is given to the human rights clause, as well as to systematic human rights monitoring and evaluation for third countries, as well as for Member States, present and future.
61. Amnesty's document follows the public outcry that arose in numerous EU countries in the months after 11 September and was caused by the adoption of antiterrorism legislation, amendments and/or packages (see above) considered a threat to individual and collective liberties. In France, for instance, NGOs such as Reporters Without Borders, the Ligue des droits de l'homme and the Campagne pour la libéralisation de la cryptographie, have denounced the amended Daily Security Bill as not having previously been submitted to the Constitutional Council and as distorting legitimate security concerns with measures of public order having nothing to do with antiterrorism. In the United Kingdom, the Anti-Terrorism, Crime and Security Act 2001 has been described as undermining the basic civil liberties of citizens to an identifiable extent. Warrant-less searches, pervasive electronic surveillance and security checks, restrictions on freedom of movement, the presumption of guilt now attached to a suspect's decision to remain silent, and indefinite internment without trial - a punitive measure previously employed against alleged German spies during World War II and against suspected members of the IRA early in the "Troubles" in Northern Ireland - have all been denounced as breaching important provisions of the European Convention on Human Rights, to which the United Kingdom is a party. In early August 2002 the internment without trial of 11 Muslim Arabs suspected of international terrorism was ruled unlawful by the Special Immigration Appeals Commission, which formed the view that singling them out amounted to discrimination. In October 2002, the UK government's appeal against this ruling was upheld by the Court of Appeal.
B. IN THE UNITED STATES
62. In the United States, the delegates will remember that human rights groups such as the American Civil Liberties Union (ACLU), the US Commission on Human Rights, Human Rights Watch, the Center for Democracy and Technology, and the National Association of Arab-Americans, have argued that the country has been undergoing a serious civil liberties crisis since the September attacks. The "USA PATRIOT" Act (standing for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), which Congress passed on 25 October 2001, has been the target of extensive criticism. The Act grants law enforcement broad new investigative and surveillance powers; it expands the government's power to conduct secret searches of the premises and property of citizens and aliens alike, as well as its ability to tap telephones and eavesdrop on Internet communication; it also gives Federal authorities wider latitude in collecting and evaluating information about people and their movements.
63. The worries of civil liberties groups have centred, inter alia, on the following aspects of the Act: 1) the legal definition of terrorism, which, they argue, is so broad that it could be enforced in a manner that is arbitrary and discriminatory; 2) the treatment of detainees under investigation on US territory, especially of Arab and Muslim detainees whose lengthy custody and interrogation periods, and difficulties seeing lawyers, have been denounced; 3) the overhaul of immigration and deportation procedures, which allow indefinite detention of immigrants and other non-US citizens if the Attorney-General has "reasonable grounds" for suspecting the individual of terrorism or of aiding terrorism in the broad sense that is defined, with no requirement that he/she be given a trial hearing; 4) the failure to provide guidelines on how long data on private individuals can be retained, and the government access to private financial information with no adequate oversight procedures to monitor its use, and no requirement that individuals be informed that their transactions are being/have been monitored; and 5) the erosion of judicial review procedures and the limitation of judicial oversight.
64. It is to be noted that criticism has also been voiced over the lack of information about who has been arrested (more than 1,000 arrests were made in a post-11 September dragnet), on what charges and where they are held. In a rebuke earlier this year to the Attorney-General, New Jersey Superior Court Judge Arthur D'Italia ruled in favour of the American Civil Liberties Union in a lawsuit it filed seeking disclosure of basic information about two detainees and their charges. The ACLU has also filed a federal lawsuit under the Freedom of Information Act seeking similar information on detainees nationwide. At the time of updating the present report, Washington Federal Judge Gladys Kessler had requested that the identities of the 200 persons or so still detained in the US be disclosed. The Justice Department is seeking an appeal of this ruling.
65. President Bush's order, on 13 November 2001, for military tribunals to try any non-US citizen suspected of terrorism provoked more criticism than any other part of the government's new criminal justice rules. Non-US suspects - aliens resident in the US for many years as well as those captured in combat in Afghanistan - would be tried, at the President's discretion, by military tribunals rather than in ordinary criminal courts. The members of the military tribunals would serve both as judge and jury, while there would be no requirement for proof beyond a reasonable doubt and no requirement that the government bear the burden of proof. Verdicts, including the death penalty, could be taken by a two-thirds vote of the members, with review only by the President, or the Defence Secretary if the President so designates.
66. In response to criticism from overseas human rights groups and others, the US government indicated in late December 2001 it would reconsider the most contentious provisions and asked Defence Secretary Rumsfeld to prepare a set of rules governing the composition and procedures of military tribunals. On 21 March 2002, new rules were released that provide for a presumption of innocence; impose a beyond-reasonable-doubt standard for conviction; guarantee the right to counsel of one's choice; and require a unanimous decision imposing the death penalty. The rules further specify various review procedures, by the President, the Defence Secretary, and by a review board appointed by the latter. It would seem however, that the rules make no allowance for any appeal to the ordinary federal courts, and that they would allow the Defence Secretary or Presidential Officer of each tribunal to close the trial proceedings to the public when either of them determines it necessary to guard the secrecy of classified or classifiable information, to protect the safety of members of the tribunal, of prosecutors or prospective witnesses, or to safeguard intelligence and law enforcement sources, methods or activities, or other national security interests.
67. While these provisions have been criticised by human rights defenders, your Rapporteur finds it nonetheless significant that the Justice Department has decided to try French-national Zacarias Moussaoui in an ordinary federal criminal court in Alexandria, Virginia. At the time of updating the present report, no final decisions had been announced concerning the use of the military tribunals to try the detainees from the Afghanistan war, including those held in Camp X-Ray at Guantanamo Bay, Cuba. The indications are that detainees in the US and at Camp X-Ray will be dealt with in a combination of ways.
68. The delegates will remember that the initial American position regarding Camp X-Ray detainees was that they were not entitled to prisoner-of-war (POW) status because they were "unlawful combatants" - a term which was not, as it was sometimes suggested in the press, invented by the United States but which has long been used to describe combatants who are not entitled, for one reason or another, to take part in conflict but who have nonetheless done so. On 7 February 2002, the United States changed its position and the White House announced that captured members of armed forces would be treated in accordance with the Third Geneva Convention of 1949 but would still not be considered prisoners of war, because they did not meet the requirements of POW status laid down in the Convention. Al-Qaeda detainees would not be regarded as falling within the scope of the Convention at all.
69. In an article published in International Affairs, London School of Economics professor Christopher Greenwood considers that "[c]ontroversial as it is, this policy is largely in accordance with international humanitarian law" (International Affairs 78, 2 (2002), p. 136). The Third Convention grants POW status to captured members of the regular armed forces of a State, but accords that status to members of irregular groups only if they nevertheless "belong" to a State and meet four requirements: 1) wear a fixed, distinctive sign to distinguish themselves from the civilian population; 2) bear arms openly; 3) are under the command of a person responsible for his subordinates; and 4) conduct operations in accordance with the laws and customs of war. While it would seem likely, that none of the al-Qaeda detainees would qualify for POW status, the International Committee of the Red Cross has recalled that, pursuant to Article 5 of the Third Geneva Convention, the issue must be decided "by a competent tribunal". Until this has happened, "such persons shall enjoy the protection of the present Convention" (Article 5), i.e. must be treated as prisoners of war until decided otherwise.
70. Whether prisoners of war or not, it should be noted that detainees have a right to humane treatment under customary international law, the relevant principles of which are widely regarded as having been set out in Article 75 of the 1977 First Additional Protocol to the Geneva Conventions. Britain, France, Germany, the Netherlands and UN Commissioner for Human Rights Mary Robinson have expressed concerns over the treatment of Guantanamo Bay detainees. Amnesty International, for its part, has indicated that the housing at Camp X-Ray of detainees in six-by-eight-foot chain-link "cages" which are "at least partially open to the elements" falls "below minimum standards for humane treatment" (quoted in "The Military Tribunals on Trial", The New York Review, 14 February 2002, p. 12).
IV. ON A FEW IMPLICATIONS OF THE FIGHT AGAINST TERRORISM AFTER, 9.11
71. After making an account of the international community's reactions to the 11 September attacks, of the European Union's Action Plan on terrorism, as well as of the issue of civil liberties and human rights that many have taken up since the events, your Rapporteur deems it necessary to broaden his analysis somewhat in this final chapter and to refer to some of the implications of the fight against terrorism. He will thus tackle the reconstructive process in Afghanistan in a first section, before looking at the situation in the Middle East in a last phase.
A. THE RECONSTRUCTIVE PROCESS IN AFGHANISTAN
72. The delegates will remember that long before the arrival of US troops in Afghanistan and the defeat of the Taliban, the country had already been devastated by more than twenty years of war, widespread human rights violations and the longest drought in modern history. Today, the development challenges in Afghanistan are daunting. Much of the country's remaining infrastructure has been destroyed; the central and commercial banking system has collapsed; approximately 1.2 million people have made their way to Pakistan and Iran and 200,000 are estimated to have been internally displaced. Less than one-quarter of the population has access to safe water; a largely subsistence agricultural sector has been destroyed and environmental degradation in rural areas is widespread. New unexploded ordnance has been added to the many hundreds of thousands of land mines and shells that have seeded the country over the past two decades - while a series of earthquakes in late March 2002 has but added to the economic and humanitarian plight of the Afghan people.
73. Following the defeat of the Taliban, talks were held on 5 December 2001 in Bonn under UN auspices, during which Afghan factions agreed to form a six-month Interim Administration to govern the country in its initial post-Taliban phase. The Bonn Agreement outlines three stages in re-establishing a unified state. Firstly, that the Interim Administration, under the chairmanship of Pashtun leader Hamid Karzai, would assume authority in Kabul on 22 December 2001, simultaneously taking over the country's seat at the UN. Secondly, that a Special Independent Commission be created to prepare for the convening of a Loya Jirga between 10 and 16 June 2002. The Loya Jirga is a grand council of tribal elders and leading politicians that counts some 1500 seats, with one third of those reserved for specific groups such as women, religious figures and nomads. The Loya Jirga would select a transitional head of State and seek to establish a broad-based Interim Government for a period not exceeding two years, during which preparations would be made for nation-wide elections. And thirdly, that no more than 18 months after the Interim Government assumes power, a second Loya Jirga be held to draw up a new constitution.
74. Pashtun former king Muhammad Zahir Shah, who returned to Afghanistan in mid-April 2002, was initially to preside over the Loya Jirga. On 11 June 2002, however, he announced his intention not to seek the presidency and to support Mr Karzai's candidacy. The Loya Jirga elected Mr Karzai transitional head of State on 13 June, with Zahir Shah having a supervisory role in writing the new constitution and presiding over national celebrations. The Loya Jirga also approved Mr Karzai's Cabinet nominations on 19 June.
75. Although ministers were chosen with the aim of balancing competing interests between Afghanistan's two dominant ethnic groups, many observers argue that this could set the stage for new factional struggles. Mr Karzai appointed ethnic Pashtun Taj Mohammed Wardak as Interior Minister, leaving Mohammed Fahim, a Tajik aligned with the Northern Alliance, in charge of Defence. Fahim was also given the post of First Vice-President, putting him next to President Hamid Karzai. Since the Loya Jirga, Mr Karzai has appointed one Pashtun from the former king's movement to a new vice-presidency and another to the commission to oversee the building of national armed forces. While this may relieve tensions in the near term, it might create new problems as the Pashtuns and Tajiks compete over responsibilities and funding for their respective security forces.
76. First and foremost is the question of what role each force will play. By definition, the Interior Ministry has responsibility for internal security challenges - from policing the streets to disarming warlords. Yet, the fledgling Afghan army has been taking a similar role in ensuring internal security. The Tajik commanders formed the backbone of the Northern Alliance forces that swept the Taliban aside after the American bombing campaign, and they likely are not ready to relinquish their military power and influence. Secondly, without clearly differentiated responsibilities, both the Interior Ministry and the Defence Ministry will compete heavily for the limited finances of the Interim Government. Moreover, warlords in virtually every region have strengthened their positions, with the US continuing to fund those seen as useful in the hunt for remnants of al-Qaeda and the Taliban, while others are backed by Russia, Uzbekistan or Iran. As a result, the Karzai government has had great difficulty extending its writ beyond Kabul, as shown by the murder of Interim Administration Minister of Tourism and Civil Aviation Abdul Rahman at Kabul airport on 14 February 2002, the killing in early July of Pashtun Vice-President and Minister for Public Works Haji Qadir, and the attempt to assassinate President Karzai in Kandahar on 5 September.
77. Despite repeated calls from Mr Karzai and others, including from EU Special Representative in Afghanistan Klaus Peter Klaiber, the UN-mandated International Security Assistance Force (ISAF - under Turkish command since late June 2002) does not extend beyond the immediate surroundings of the Afghan capital. While its mandate has been extended through December 2002, ISAF, partly because of its small size (5,000 troops) and partly because of its mission (assisting in the maintenance of security in Kabul and the surrounding area), will be unlikely to create an environment free of armed intimidation - at least not in its present form. At the time of updating this report, the United States had indicated that it was in favour of beefing up the Force and extending it beyond Kabul. This would be a matter for the United Nations and the ISAF lead nation.
78. It seems obvious to your Rapporteur that continuing the war on terrorism, while simultaneously trying to uphold the peace process begun in Bonn in December 2001, is no easy task. US officials have committed not to disengage until an 80,000-strong Afghan National Army has been created and training of battalions completed. Similarly, organisational, recruitment and training plans for a police force have been drawn up by Germany, who has also been equipping police stations in Kabul. Your Rapporteur wishes to point out, however, that longer term, such efforts could be impeded by the lack of international funding for Afghanistan's new army and police force. The government has estimated that maintaining the armed forces alone will cost about US$135m a year. The UN Donors' Conference that took place in Tokyo on 21 and 22 January 2002 produced US$4.5 billion in reconstruction pledges, but none for security needs. The Afghanistan Security Assistance conferences in Geneva (May 2002) and Paris (July 2002) produced for their part financial support and aid in the form of equipment and training, including a pledge of ?22m (US$34.4m) from the United Kingdom specifically for security sector reform.
79. The delegates will remember that at the Donors' Conference in Tokyo, the international community agreed upon a detailed Reconstruction Programme of measures to be implemented in Afghanistan, including landmine clearance programmes, re-integration of former combatants, the revival of economic activity, a fairer justice system, democratic institutions and mechanisms for the protection of human rights. It also set out the expected costs of providing basic services such as clean water, sanitation, schools, health care and roads. The UN's Immediate and Transitional Assistance Programme for the Afghan People 2002 (ITAP) estimated that some US$1.33 billion would be needed up until December 2002 to cover humanitarian needs, recovery activities and budgetary support for the Interim Government. Some US$1.8 billion was pledged in Tokyo, with the European Union providing US$500 million and the United States US$296 million (all of which will be directed towards humanitarian and reconstruction needs).
80. The Asian Development Bank and UN Development Programme have calculated that Afghanistan would need at least US$15 billion over the next 10 years. With this figure in mind, your Rapporteur strongly feels that a regional strategy should be adopted, with donors targeting and co-ordinating their actions. Likewise, he is of the opinion that systems of accountability be created on the ground to deal with donor countries and NGOs providing assistance, and to ensure their help fits in with the Interim Government's priorities and reach those for whom it is intended. In this regard, he hails the setting up of the Afghanistan Reconstruction Trust Fund on 16 May 2002 as an important step; he hails also the establishment of a central bank, Supreme Court and other essential institutions as decisive measures. He fears, however, that the unprecedented amounts of money earmarked for Afghanistan could increase the dangers of the international community being led astray, the effect of which could be corruption, local tension and the loss of any ability to use aid as a tool to restore order and peace in the country.
81. All the more so, as the cabinet assembled in June at the Loya Jirga would appear to augur rather badly for economic reconstruction. It would indeed seem that fewer than half a dozen ministers have advanced education or relevant professional competence in the jurisdictions of their ministries. With many ministries occupied by deputies of warlords and uneducated senior staff ("America's Afghan imbroglio. Descending into the quagmire?", Strategic Comments, Volume 8, Issue 6, August 2002), the international community lacks a competent partner to accelerate reconstruction, while donors could soon conclude that serious reconstruction should be delayed until the December 2003 elections.
82. Finally, this is without mentioning the drug trade, which remains a critical obstacle to security and reconstruction in Afghanistan. The Taliban had banned poppy cultivation in July 2000, a move which was described as a deliberate attempt to manipulate the market. Since September 2001, despite measures adopted in January and April 2002 by the Interim Administration to ban opium cultivation and narcotics trafficking, including payment for the destruction of opium crops, farmers have turned back to poppy-growing in areas where the economic situation is dire. In addition to enforcing an eradication programme, your Rapporteur is thus of the opinion that alternative forms of livelihood, such as crop substitution and community projects, ought to be part of the overall reconstructive process in Afghanistan.
B. THE SITUATION IN THE MIDDLE EAST
83. The 11 September events have demonstrated how significant the situation in the Middle East is, and how important it is for both the United States and Europe to do everything possible to bring an end to the Palestinian-Israeli crisis. In this final section, your Rapporteur will make a brief account of the main proposals put forward, over the last several months, to press the resumption of peace negotiations in the region.
84. Since the collapse of the Israeli-Palestinian negotiations and the outbreak of the second Intifada in September 2000, more than 1,660 Palestinians and 575 Israelis have been killed (International Herald Tribune, 24 July 2002), and many more injured. The violence that has gripped Israel since then, has escalated in the past few months as Palestinian terror attacks and suicide bombings multiply and Israeli forces occupy Palestinian cities in the West Bank and Gaza Strip. The delegates will remember that a first incursion into West Bank Palestinian cities took place between 29 March and 21 April 2002. On 10 May, a standoff at the Church of the Nativity in Bethlehem ended with 26 alleged Palestinian militants transferred to Gaza and 13 exiled "on humanitarian grounds (...) for a period of twelve months" to Belgium, Cyprus, Greece, Ireland, Italy, Portugal and Spain. A second incursion into the West Bank (operation "Determined Path") was launched on 24 June, which was still ongoing at the time of updating this report. On 23 July, an Israeli air strike in Gaza City killed Hamas military commander Salah Shehadeh and 14 others, among them 9 children, and injured about 150.
85. Beyond the emotional reactions of both parties to the conflict, which will not be taken up in this report, your Rapporteur will recall that a certain number of proposals have been on the table to try to break this spiral of violence/retaliation. Crown Prince Abdullah of Saudi Arabia has won Arab League endorsement for full Arab normalization of relations with Israel in exchange for Israeli withdrawal to approximately the June 1967 borders, allowing for the creation of a Palestinian State. This proposal, which briefly transformed the external dynamic of Middle East peacemaking, is referred to in UN Security Council resolution 1397 (12 March 2002) and seemed to have won President Bush's support for a joint drive to push the two sides back to the bargaining table. Mr Bush's speech of 24 June 2002 put this strategy on hold, however, with his calling on the Palestinians to establish a new constitutional framework and to elect new and different leaders, who would negotiate new security arrangements with Israel, Jordan and Egypt. No reference was made in the speech to a previously envisaged international peace conference, which the Europeans have continued to endorse. The same day, a decree was issued by the Palestinian Authority ordering parliamentary and presidential elections in January 2003 and local government elections in March. It should be noted, however, that at the time of updating the present report elections were a difficult concept in tormented fragments of occupied territory where movement was blocked, and basic survival at the top of people's minds.
86. Consistent with President Bush's 24 June statement, in a Quartet group meeting in New York on 16 July, the UN, EU and Russia expressed their support for the goal of achieving a final Israeli-Palestinian settlement, based on the vision of two States, which could be reached within the next three years. A co-ordinated international campaign was approved to support Palestinian reforms, and a Task Force on Reform established, which is comprised of representatives of the US, EU, UN, Russia, Japan, Norway, the World Bank and the International Monetary Fund. The Task Force will develop and implement a comprehensive action plan for reform with benchmarks in the areas of financial accountability, local government, market economy, elections and the judiciary. As to the restructuring of Palestinian security services initiated by CIA Director George Tenet, it is considered essential "to progress (...) on realization of a Palestinian State committed to combating terror" (US Department of State Office of the Spokesman, 16 July 2002).
87. Your Rapporteur would like to indicate that, however much the United States and other countries promote an Israeli-Palestinian peace settlement, an involvement which he does support, final approval must come from Israeli and Palestinian leaders, and perhaps voters as well. All the more so, as specific compromises will be needed on boundaries, Jerusalem and refugees to finally end the conflict.
88. With the dire situation in the occupied territories in mind, (a study initiated and funded by the US Agency for International Development warned on 5 August 2002 of a "distinct humanitarian emergency" among Palestinians living in the West Bank and Gaza Strip) your Rapporteur believes that indefinitely prolonged occupation and closure policies, including the construction of a separation fence in some areas in Jerusalem and inside the West Bank, would be a prescription for more terror, more death, more economic pain on both sides, further radicalisation of Palestinian opinion, and a widening schism within Israel's society. These, to your Rapporteur, are elements that should also be taken into account when referring to, and trying to resolve, the Palestinian-Israeli crisis.
89. Hence, while terrorism is just one of many non-traditional security challenges of the present day, the dreadful attacks of 11 September have shown, if this had yet to be shown, how pernicious and devastating terrorism is and how industrialised societies can be easy prey. With the September events, we have all come to realise that the pervasive nature of such threats is universal in effect, with globalisation and the revolution in information technology "knocking down", so to speak, traditional State mechanisms based on ideas of borders and frontiers.
90. Your Rapporteur is of the strong opinion that the response to hyper-terrorism must be holistic. While it is no longer possible to separate terrorism from money laundering or organised crime from drug trafficking, similarly it is impossible to "wage a war" against one to the exclusion of the other. To your Rapporteur therefore, the attacks against the United States have reinforced the need for a global and integrated approach, which mirrors the nature and complexity of the threat and which involves not only military but also - and perhaps even more so - legal, political, diplomatic and socio-economic elements in an attempt to stamp out terrorist threats through co-ordinated policies. Mr Jean-Louis Bruguičre, First Vice-President of the Tribunal de Grande Instance de Paris, did not say otherwise in Sofia in May, when he called for the "de-compartmentalization" of national anti-terrorism services (in particular of intelligence services), for enhanced information-sharing with the police and judicial authorities, and for improved international co-operation at all possible levels.
91. To your Rapporteur, a balance ought to be struck in this regard, with national and international actions against terrorism taking particular account of respect for individual freedoms and (customary) humanitarian law.