Enar

Investigating the limits of the EU’s counter-terrorism strategy and security politics in light of the attacks in Norway

By Sergio Carrera, Anaïs Faure Atger and Elspeth Guild, Centre for European Policy Studies (CEPS)

The tragic attacks in Norway in July 2011 have prompted wide debate and introspection both inside and outside the EU. This article argues that these acts of political violence should be taken as an opportunity for the intelligence services, the media, security experts and policy-makers to appreciate the wider spectrum of issues that were revealed by this domestic incident and to reconsider the current EU approach to security politics and policies. The attacks in Norway constitute a unique occasion for critically evaluating the adequacy, proportionality and impact on fundamental rights of current policy priorities guiding the EU’s counter-terrorism strategy.

Introduction

Much has been written both in the media and in political discussions across Europe about the origins and implications of the tragic killings last July in Norway. As also occurred in the aftermath of the 11 September 2001 events, the massacre has prompted EU policy-makers to advocate coordinated action and response at European level. Building upon its assessment of the achievements and challenges of the EU’s counter-terrorism policy and following the lines set by the 2010 Internal Security Strategy (ISS), DG Home Affairs of the European Commission has called for moving discussions forward and adopting previously tabled EU proposals on “anti-radicalisation of violence”, common rules on access to chemicals that could be misused to produce home-made explosives and the intensification of data processing between national and EU law enforcement authorities. [1] After an emergency joint meeting of the two Council groups on terrorism (the Terrorism Working Party and COTER) convened by the Polish Presidency on 28 July 2011, Member States’ interior ministers confirmed their intention to intensify the emergency and intelligence-driven policy approach that guides the ISS and the Commission’s initiatives on counter-terrorism.

This paper argues that the events in Norway have revealed some of the deficiencies of the EU’s counter-terrorism strategy and security politics and justify a careful and independent evaluation of the current EU security strategies. Echoing the findings of previously conducted research on liberty and security in the EU carried out by the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS), this paper advocates a higher degree of accountability of current EU policies and proposals and for reducing the gap between social science research and EU policy-making at times of assessing how best to address the security interests and liberties of the people in Europe. [2]

The attacks in Norway: Revealing the shortcomings of the EU’s counter-terrorism strategy

Let us first start by reviewing the facts of the case. On 22 July 2011, a car explosion in the centre of Oslo close to government and media buildings first drew worldwide attention to the situation in this Nordic country, which, although not a member state of the EU, cooperates in several EU security policies. Later in the same day, confused accounts of a mass shooting on the Norwegian island of Utøya were reported. As the police arrived on the island, the killer Anders Behring Breivik, a 32-year old Norwegian national, was identified and taken into custody after promptly admitting his responsibility for both events. Breivik’s target was the Norwegian ruling party, as both attacks were aimed at governmental buildings and members of the country’s political elite. Every year, Utøya hosted a youth political camp organised by the governing centre-left Labour Party. A total of 77 people were killed, of whom eight were victims of the Oslo bombing and 69 were shot to death by the fire weapons he was carrying. A few days before, Breivik had published online a 1,500 page manifesto in which he revealed his deadly intentions and extensively developed his motivations. He addressed the document to all those “who are concerned about the future of western Europe” because of the current media and governmental support for multiculturalism and therefore for “the ongoing Islamic colonisation of Europe”.

The nature and goals of these acts of political violence highlight the shortcomings of the priorities that lie at the foundations of the current EU’s counter-terrorism policies and practices. Particularly its framing, which is based on a secretive and weakly justified (non-evidence-based) understanding of what constitutes a ‘threat’ to the Union and ‘how to best address it’ with common pan-European policy responses, has been called into question. In fact, three of these events’ characteristics should in our view call for a reconsideration and critical analysis of some of the principles and guiding approaches of the EU’s counter-terrorism strategy.

The attacks in Norway should be seen by EU policy-makers as the occasion to openly reconsider the adequacy and legitimacy of the current framing and response of security politics at EU level.

First, beyond Behring Breivik’s evidently racist motivation, his objective was to strike at the country’s political class as the attacks mainly targeted the ruling party and the country’s political supporters. As the events were unfurling, however, the media quickly referred to the probability that this was the work of “international terrorists”, in particular of “Al-Qaeda sympathisers”. The modus operandi used in Oslo was said to reflect past terrorist attacks in the EU and thus to point to the obvious involvement of so-called “Islamist radicals”. Norway’s participation in the war in Afghanistan was mentioned by certain media as a probable provocation for such violence and anti-terrorism experts were quoted as concluding that no other force could have so violently targeted such governmental symbols. As later became evident, however, the attacks were primarily an instance of domestic political violence.

This goes along with an increasing tendency to automatically label as ‘international terrorism’ acts of very divergent nature ranging from ‘anarchism’ to ‘radical environmentalism’. This is largely due to the absence of an EU-wide accepted definition of what terrorism actually means and calls for a further reflection on the broad scope of the concept adopted at EU level. [3] Such discussion is necessary to prevent uneven and opportunistic interpretations across the EU and to ensure respect for the fundamental rights to freedom of thought, expression and association enshrined in the EU Charter of Fundamental Rights. [4]

Second, despite immediate assumptions that the attacks were the work of “international terrorist networks”, Europol and the Norwegian police have so far been unable to document any evidence of international linkages and/or accomplices in the organisation of the attacks. This notwithstanding, policy-makers’ preoccupation with the existence of networks of so-called ‘Islamic radicals’ seem to have diverted their attention from the wider spectrum of issues that are at stake in this case. In particular, the reliability and pertinence of data used by EU security agencies and actors such as Europol and the EU-Counter-Terrorism Coordinator in framing and identifying ‘threats’ and ‘threat levels’ to the EU’s internal security appear to have been called into question by these events.

Are events that are so closely associated with the domestic context not likely to be better addressed at the local and national level? Does a single, however horrific act of extreme right violence constitute a ‘common EU threat’ requiring a common European response? The 2011 TE-SAT report issued by the European Police Office (Europol) – prior to the events – only observed a professionalisation of right-wing propaganda. It is produced on the basis of information provided by the competent authorities of the EU member states. In a recent Council document, the specific systems of analysis and information exchange regarding terrorist threats in Member States have however been described as mostly incomparable. Yet this report is said to constitute Europol’s “most significant strategic analysis report” and aims to provide “facts, figures and trends” regarding threats and terrorism in the EU. In relation to right-wing terrorism, it reports a diminished impact of right-wing terrorism and extremism in the EU and that the overall threat “appears to be on the wane.”

The reactions following the attacks in Norway have revealed the limits of the current framing of ‘threats’ and ‘risk’ at EU level. This challenges the culture of secrecy that characterises intelligence and police activities and points to the absence of proper accountability mechanisms for verifying the quality and soundness of the information upon which security threats are understood and framed. [5] Respect for the principles of legal certainty and proportionality calls for a careful scrutiny and more plural debate of the methods by which information and ‘knowledge’ on security in the EU are produced, interpreted and presented to the public. The labelling of certain acts as ‘terrorism’ or ‘extremism’ calls for continuous objective examination on the basis of the best evidence and through proper democratic accountability procedures.

Third, contrary to current EU security agencies’ and actors’ assumptions which too often link ‘migration’ with ‘criminality’ and even ‘terrorism’, [6] these events highlight the importance of debating the extent to which the emphasis on the existence of such a connection (and consequent stigmatisation of certain communities) may actually lead certain individuals to engage in xenophobic and violent behaviour. The current semantic continuum of threats and insecurity that drives some EU home affairs discourses and connects the ‘fight against terrorism’ with the ‘fight against drugs, organised crime, cross-border criminality and irregular immigration’ needs to be carefully examined and abandoned. The effects (and added value in terms of effectiveness) of existing strategies to address these phenomena through enhanced border and technology-driven controls of transnational movements of persons should be openly discussed and scrutinized. [7]

While several EU policy instances are paying attention to the negative repercussions of ‘speaking of’ migration as something ‘illegal’, other actors such as Europol continue to foster a correlation between irregular immigration and crime in the EU in their pronouncements. The last Europol 2011 OCTA report is an exemplary case of constructing a nexus between criminality and certain kinds of immigration (and even the identification of certain nationalities and ethnic origins as “sources of criminality”). [8] A large section of the OCTA (which forms the basis for the Council’s priorities and recommendations in the broader ISS policy agenda at EU level) is dedicated to “criminal groups and hubs” in the facilitation of “illegal immigration”. The TE-SAT report [9] cited earlier goes even further by stating that migration from Northern Africa risks further radicalising right-wing extremism and terrorism by instilling more widespread public apprehension about immigration. The implicit underlying (yet untested) presumption here is thus that immigration causes racism and right-wing extremism. Taking this reasoning to its logical conclusion, Europol appears to consider that there exists in Europe widespread public apprehension about immigration waiting to be transformed into extreme right-wing terrorism.

Testing the EU security responses

How should the EU respond to such events? The attacks in Norway should be seen by EU policy-makers as the occasion to openly reconsider the adequacy and legitimacy of the current framing and response of security politics at EU level. Instead, however, it appears that it is the intention of various political and institutional forces ‘working on security’ at EU level to use them as a justification for legitimising their respective interests, roles and agendas. The perceived need for a rapid response to such events indeed serves to foster ‘politics as usual’. The above-mentioned emergency Council meeting of the 28 July and the various announcements by the spokespersons of the Council, Counter-Terrorism Coordinator and European Commission have already revealed the kind of policy approach that the EU intends to pursue in the months to come. This includes intensified discussions on a proposed regulation on marketing and use of explosives precursors, amplification of ‘intelligence-based’ and data processing techniques by EU security agencies like Europol and fostering the EU policy strategy on ‘anti-radicalisation’. Yet, would any of these EU policy measures and initiatives really have helped to prevent the Norway events?

The European Commission first invoked the importance of better regulating the use of explosives precursors in light of the attacks. Because the artisanal bomb that exploded in the Norwegian capital contained large amounts of fertilizers, the Commission is now hopeful that its previous legislative proposal to better regulate and track the purchase of such products will now be endorsed: “Compromises tend to be found easier after shocking events like those that happened in Norway." [10] In September 2010, the Commission published a proposal for a regulation to limit access and sale of chemicals, some of which may be used to make explosives. However, the lack of support and the concern that this measure would limit access to and ‘legitimate’ use of fertilisers has so far blocked the proposal in negotiations. Should these most recent events justify pushing the proposal through? Proportionality and fundamental rights concerns are raised by this initiative on the basis of the absence of clear legal definition of ‘what’ can constitute a ‘suspicious transaction’, the substantial amount of personal data processing the proposal foresees and the limited adequacy of the safeguards that have been included as regards access to and use of such data. Furthermore, since Breivik was renting a farm as cover for his malevolent intentions, his purchase of such products would not have raised suspicions (this fact, however, should not be used to justify further restricting the scope of who may enter into such transactions without attracting the attention of the authorities). [11]

On the 27th of July, Europol announced it would for the first time use its EU First Response Network set up after 9/11 to allow its 60-expert members to provide an integrated operational platform to deal with the aftermath of the attacks in Norway. This platform was intended to facilitate the activities of law enforcement officials across the EU by providing access to an “international database of terrorist suspects and extremists”, the “tracking of terrorist financing” and an operational platform to coordinate major international lines of enquiry. The added value and compatibility with the EU’s objectives of Europol’s involvement in all matters affecting the security of member states, and the relations of the Union with third countries, needs to be debated and carefully scrutinised. [12] It has since then proved to have very little value in the context of assessing the Norway case, as the events presented few linkages beyond the national arena. This notwithstanding, the First Response Team issued recommendations for Member States to create a task force on violent extremism, enhance exchange of practice mechanisms and ask Europol to prepare an EU-wide assessment on the threat posed by individuals and groups associated with violent single issue extremism.

This move is characteristic of the EU anti-terrorist approach, which consists of relying on the analysis of security experts, the massive gathering, exchange and transfer of information across member states and with third countries by EU agencies and of assuming as an ‘unchallenged mantra’ the existence of a nexus between internal and external threats. The priority given to ‘intelligence-based’ and data processing techniques by EU agencies like Europol should be re-examined. Europol’s security practices are moving beyond traditional ways of policing in Europe by increasingly focusing on intelligence gathering (exchange of information and personal data) and sustaining a peremptory and anticipatory approach. The question could be raised as to the extent to which the Norway attacks have actually shown the potential effects and existing limits of such intelligence-led logic of policing. Their effectiveness should be re-examined at EU level, as is their desirability in light of the inherent challenges that they pose to rule of law, accountability and fundamental rights principles of the EU’s Area of Freedom, Security and Justice. The upcoming revision of Europol’s mandate to be negotiated as of 2013 offers a good opportunity to review its priorities and practices.

Another EU policy response relates to the follow-up to the ‘EU’s anti-radicalisation strategy’. The Council has welcomed the Commission’s initiative to launch an EU radicalisation awareness network, regardless of motivation, and terrorist modus operandi, dealing with the spreading of extremist propaganda via the Internet, recruitment and incitement to commit terrorist acts. The EU has however so far not been able to develop concrete legislative proposals in this subject since 2005. What falls under the category of ‘extremist propaganda’ and ‘who’ is considered to be radicalised? As de Kerchove, EU Counter-Terrorism Coordinator himself analyzed, the current EU approach to the topic has until now mainly consisted in focusing on ‘Islamic radicalisation’. [13] By relying on biased assumptions of what constitutes a threat and focusing on vulnerable groups (migrants, ethnic and religious groups) as a source of insecurity, EU anti-terrorist cooperation risks reinforcing xenophobic discussions and attitudes. The use of alarmist language and policies that support polarisation are counterproductive. The Norway events have shown that for enhancing the security of the people of Europe, emphasis should be put on firmly and systematically condemning and addressing at the highest official levels extreme violence against all vulnerable groups including migrants, minorities and youth. The rejection of the diversity of our societies, and narratives fostering its ‘insecuritisation’, along with the compatibility of common policies and practices with rule of law and fundamental rights, are amongst the prime insecurity challenges that the EU will face in the decades to come.

Conclusions and Recommendations

The Council meeting of 28 July further confirmed the EU’s pursuit of the current approach to countering terrorism. The Norway events however deconstruct some of the key premises of EU security politics at the same time that they reveal the limits of current EU counter-terrorism policies. They should be taken as an opportunity to reassess some of the current assumptions regarding the nature of terrorist phenomenon in Europe and the effects of the methods, practices and policies used to face it at EU level. The following policy recommendations should be taken into account in this process:

First, the policy approach and emerging police model followed at EU level, which relies on a culture of emergency and secrecy steered by the work of Europol and other EU security agencies, should be reassessed. The practical impact of the legally binding nature of the EU Charter of Fundamental Rights on the anti-terrorism strategy and the work of EU institutions and security agencies should be studied in detail. Their mandates, especially that of Europol, should be reconsidered, taking into account the fundamental rights sensitivities of their activities and the need for accountability.

Instead of hastily engaging in finding political compromise on existing legislative initiatives, EU leaders and security experts/agencies should give priority to carefully review the legislative and policy measures that have been adopted to date, ensure a proper and effective transition from the older Third Pillar framework to the new post-Lisbon Treaty context (including the legislative conversion of Framework Decisions into current secondary law), consolidate the implications of the EU Charter of Fundamental Rights on their work and reflect upon ‘the way forward’ in EU counter terrorism cooperation. The latter set of reflections should be premised on the protection of rule of law and fundamental rights and not become ‘incident-driven’ policy-making. Second, the need to address the ‘social-sciences knowledge/gap’ and the ‘democratic deficit’, which still characterise the knowledge assumptions and methodologies of EU anti-terrorist and security cooperation, should be among the key lessons learnt from the Norwegian events. The nature and goals of these acts of political violence challenge some of the key assumptions, ‘intelligence’ and working methods substantiating and driving the current EU’s counter-terrorism agenda. The fundamental role of accountability as a necessary element for ensuring the effectiveness of security strategies and legitimacy of policy interventions in a democratic setting requires not only more transparency in decision-making processes, but also more pluralistic inputs and scrutiny of the methodologies with which information and ‘knowledge’ on security is produced, interpreted and presented to the public.

The involvement of the European Parliament (EP) in such discussion should be formalised and its recommendations be taken into account. The post-Lisbon institutional provisions, where the EP and national parliaments are to become central partners of the Council in EU decision-making, should be fully internalised in the Council structures and put effectively into practice. An evaluation of EU counter-terrorism policies would ensure the accountability of EU policy-makers, which continue to work under a tradition of secrecy and intergovernmentalism. [14]

Third, the legitimacy of EU policy requires the testing of the counter-terrorism strategy (its current and future policy components) against the rule of law and fundamental rights on the basis of objective and independent social-sciences evidence with a view to monitoring the added value, necessity, proportionality and impact of any further measure in this field.

Such ‘independent evaluation’ – both ex ante (impact assessments) and ex post (Article 70 of the Treaty on the Functioning of the European Union, TFEU [15]) – should be essential ingredients of the scrutiny of existing measures before any new ones are adopted. For instance, an evaluation and modification of the Council Framework Decision 2002/475/JHA on combating terrorism should be considered, so as to better fine-tune the definition of terrorist offences, and so as to link it better to the Charter of Fundamental Rights. The transposition of the Directive on control of the acquisition and possession of weapons should also be assessed and its impact evaluated.

Fourth, a new independent (interdisciplinary) network of academics across all EU member states should be set up to ensure a non-ideological and independent assessment of EU security and counter-terrorism policies, and their compatibility with the EU Charter of Fundamental Rights, on the basis of the best social sciences research-based evidence. [16] The network should mainly serve to substantiate and back up the democratic accountability check carried out by the EP and national parliaments on counter-terrorism policies and legislation. Its activities should embrace the whole range of policies developed in this area, their transposition and impact and include the scrutiny of EU agencies’ activities and allocation of EU financial support in this domain. In close cooperation with key civil society organisations, it could complement the evaluation of the impact on fundamental rights and rule of law of internal and external security policies with its independent expertise and knowledge.

[1] The principles and guidelines for action for attaining a ‘European security model’ upon which the ISS would be based include a predominant focus on prevention and anticipation, reinvigoration of information exchange through large-scale databases, improved cooperation between EU security agencies and increased coordination by the Standing committee on operation cooperation on internal security (COSI). See Elspeth Guild and Sergio Carrera, Towards an Internal (In)security strategy for the EU?, CEPS Paper Liberty and Security in Europe, Centre for European Policy Studies (CEPS), Brussels, January 2011.

[2] See in particular the findings of the Challenge project and D. Bigo, S. Carrera and E. Guild, The CHALLENGE Project: Final Policy Recommendations on the Changing Landscape of European Liberty and Security, Challenge Paper No. 17, Centre for European Policy Studies (CEPS), Brussels, September 2009.

[3] It is so far defined by Article 1 of the Council Framework decision of 13 June 2002 on combating terrorism, 2002/475/JHA, OJ L 164, 22.6.2002 as amended by Framework Decision 2008/919/JHA, OJ L 330, 9.12.2008 and includes committing or threatening to commit no less than eight types of offences with the aim of seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

[4] Refer to Articles 10, 11 and 12 of the EU Charter.

[5] D. Bigo, S. Carrera, E. Guild and R.B.J. Walker, The changing landscape of European Liberty and Security: Mid-term report on the results of the challenge project, Research paper No. 4, Centre for European Policy Studies (CEPS), Brussels, February 2007.

[6] See Europol, 2011 OCTA and 2011 TE-SAT reports (https://www.europol.europa.eu). In particular the TE-SAT report states: “Although the goals of terrorist and organised crime groups (OCGs) are different, an issue which is of growing concern to EU law enforcement are the connections between terrorist and organised crime groups’ activities. Drugs and human trafficking are occasionally joint ventures between organised crime and terrorist groups, and are sometimes an in-house activity of terrorist groups. Information obtained from EU member states shows, for instance, that both the PKK/KONGRA-GEL and LTTE are actively involved in drugs and human trafficking, the facilitation of illegal immigration, credit card skimming, money laundering, and fraud for the purpose of funding terrorist (support) operations” ( pages 12 and 13).

[7] T. Balzacq, S. Carrera and E. Guild, The Changing Dynamics of Security in an Enlarged European Union, Research paper No. 12, Centre for European Policy Studies (CEPS), Brussels, October 2008.

[8] Europol, EU Organised Crime Threat Assessment 2011, Europol, The Hague. For instance, page 17 of the OCTA report states: “The most widely reported organised crime groups involved in the facilitation of illegal immigration are of Chinese, Turkish, Albanian, Indian, Iraqi, and Russian origin. Chinese, Vietnamese, Indian, Pakistani, and some West African groups are among the most capable, managing all successive phases of illegal immigration from source to destination countries.” The OCTA report also identifies “internet technology” as a key tool linking all forms of crime: “Internet technology has now emerged as a key facilitator for the vast majority of offline organised crime activity. In addition to the high-tech crimes of cybercrime, payment card fraud, the distribution of child abuse material, and audio visual piracy, extensive use of the Internet now underpins illicit drug synthesis, extraction and distribution, the recruitment and marketing of victims of trafficking in human beings (THB), the facilitation of illegal immigration, the supply of counterfeit commodities, trafficking in endangered species, and many other criminal activities.”

[9] The report states expressly that “If the unrest in the Arab world, especially in North Africa, leads to a major influx of immigrants into Europe, right-wing extremism and terrorism might gain a new lease of life by articulating more widespread public apprehension about immigration from Muslim countries into Europe.”, p. 30.

[10] Michele Cercone, spokesman for Cecilia Malström, responding to a journalist on the press briefing of 25 July 2011.

[11] However, it needs to be acknowledged that since he purchased the chemicals online, he had been included in an Interpol watch list that had been transmitted to the Norwegian police, but this did not lead them to consider him as a threat nor had his recent purchase of various firearms raised any suspicion.

[12] According to Article 88 of the Treaty on the Functioning of the European Union (TFEU), Europol’s mandate, is to “support and strengthen action by the Member States’ police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.” Refer also to Council of the European Union, Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L 121/37, 15.05.2009(a).

[13] Statement by Gilles de Kerchove on the twin attacks in Norway, 23 July 2011.

[14] European Parliament, Resolution on the EU Counter-Terrorism Policy: main achievements and future challenges (2010/2311(INI), “whereas remarkably little has been done to assess to what degree EU counter-terrorism policies have achieved the stated objectives; whereas Parliament has repeatedly called for a thorough evaluation of EU counter-terrorism policies, as evaluation and assessment are preconditions for the transparency and accountability of policy-makers; and whereas the absence of proper evaluation of EU counter-terrorism policies is mainly due to the fact that a large part of it is conducted in the area of intelligence and security policies, where there is a tradition of secrecy (…) 6. Recalls that counter-terrorism policies should meet the standards set with regard to necessity, effectiveness, proportionality, civil liberties, the rule of law and democratic scrutiny and accountability that the Union has committed itself to uphold and develop, and that assessing whether these standards are met must be an integral part of an evaluation of all EU counter-terrorism efforts; considers that these policies must be developed in accordance with the provisions of EU primary law and, in particular, give priority to respecting the rights enshrined in the Charter of Fundamental Rights of the European Union”.

[15] Article 70 TFEU reads: “Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.”

[16] D. Bigo, S. Carrera and E. Guild, The CHALLENGE Project: Final Policy Recommendations on the Changing Landscape of European Liberty and Security, Challenge Paper No. 17, Centre for European Policy Studies (CEPS), Brussels, September 2009.

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