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A.  Introduction

In implementation of United Nations (UN) Security Council Resolution No. 2178/2014, the European Union (EU) institutions have been mobilized to assess whether existing legislation on combating terrorism covers the criminal activities associated with the phenomenon of foreign fighters.  The Council of the European Union has urged the Parliament to endorse the 2011 Passenger Name Record Directive, which requires airlines to transfer passenger data to national authorities.  The Directive is expected to assist in the apprehension of foreign fighters who travel to other countries or return to the EU.  In addition, the EU Counter-Terrorism Coordinator has proposed a number of measures to address the problem of foreign fighters, as discussed below. 

Since 2013, at the EU level, the threat posed by foreign fighters has been at the forefront of the agenda of EU institutions and bodies.  Central to the ongoing discussions and debates is the question of whether existing EU legislation is sufficient to deal with new legal issues posed by returning foreign fighters in areas such as the gathering and admissibility of evidence in compliance with the rule of law, financial investigations, and the question of judicial cooperation with third (non-EU) states.  Eurojust has announced that it intends to present a report on foreign fighters to the Council of the EU.[1]

Estimates of fighters returning from zones of terrorist operations to the EU Member States vary  During parliamentary discussions, Gilles de Kerchove, the EU’s counterterrorism coordinator, presented an estimate of more than three thousand.  Eurojust President Michèle Coninsx claimed that there were close to two thousand, and Rob Wainwright, director of the EU’s police agency Europol, gave an estimate in the low thousands.[2]

B.  EU Institutions

1.  Council of the European Union

In August 2014, the European Council decided to accelerate the implementation of the June 2013 package of twenty-two measures adopted by the European Terrorism Coordinator (ETC).[3] On October 10, 2014, the Justice and Home and Affairs Council agreed to adopt the EU Passenger Name Record (PNR) Directive (see below) and called on the European Parliament to endorse it immediately.  The Council also agreed to improve checks at the external borders of the Schengen area, under the existing legal framework.[4]

In light of Resolution No. 2178/2014 of the Security Council of the United Nations adopted on September 24, 2014, which is binding on the EU and its Member States, the European Council also made public a document issued by the Counter-Terrorism Coordinator with the intention of initiating a debate as to whether or not the existing EU legal framework on terrorism deals adequately with the phenomenon of foreign fighters and whether additional measures are needed.[5] The document is addressed to the delegations of the EU Members and requests that they also review their national legislation to ascertain whether it is compliant with UN Resolution No. 2178/2014 and whether they intend to amend the legislation.[6]

The paper noted that while Framework Decision 2008/919/JHA,[7] which amended Decision 2002/475/JHA on Combating Terrorism[8] to introduce three new offenses related to public provocation, recruitment, and training for terrorism, may be sufficient to dismantle recruitment/facilitation of networks, such as Sharia4Belgium, it may not be sufficient to prosecute individual foreign fighters who travel on their own.  In addition, the difficulty of collecting evidence on activities in foreign jurisdictions was also recognized.[9] The paper also highlighted that some EU Members have already criminalized or intend to criminalize the following offenses:

  • Preparation to receive terrorist training, for example in the case of preparing to travel to conflict zones.
  • Buying material for explosives and engaging in suspect financial movements in order to commit terrorist acts.
  • Traveling in spite of passport removal and against orders not to travel.
  • Active participation in an armed conflict in a third country.
  • Offenses committed by family members by not disclosing information, which is significant in preventing a terrorist attack.[10]

2.  European Commission

a.  Passenger Name Record Directive

Currently pending before the EU Parliament is the Commission’s 2011 proposal for a Directive on the transfer of Passenger Name Record data by commercial airlines to Member States authorities for extra-EU flights or intra-EU flights, if Member States so wish, for the prevention, detection, investigation, and prosecution of terrorist offenses and serious crime.[11] In 2013, the Civil Liberties Committee voted down the proposal for not complying with the standards of necessity and proportionality.[12] Once approved, it is expected, as argued by Europol, to assist the EU Members in apprehending foreign fighters.[13]

b.  Radicalization Awareness Network

The European Commission’s Radicalization Awareness Network (RAN), which brings together more than seven hundred experts and practitioners throughout the EU, assists the EU Members in their efforts to fight radicalization at the national and local levels.  The working group RAN Internal and External Dimensions (RAN INT/EXT), focuses on the role of the diaspora in fighting radicalization and “foreign fighters.”[14]

c.  Communication on Preventing Radicalization

In January 15, 2014, the Commission presented a Communication on Preventing Radicalization to Terrorism and Violent Extremism: Strengthening the EU’s Response.[15] The Communication suggests various measures to be taken by the EU with the Member States to prevent and curb radicalization, such as developing national strategies to fight radicalization; training practitioners, social workers, police, and prison staff to recognize those at risk;[16] and developing exit strategies.[17] The Commission also proposes to improve the role of the RAN Secretariat to assist the EU Members in combating violent extremists.[18] 

3.  Counter Terrorism Office Proposals

In May 2013, the EU Counter-Terrorism Coordinator (CTC), in a paper on Foreign Fighters and Returnees from a Counter-Terrorism Perspective, in Particular with Regard to Syria,[19] suggested twenty-two measures to fight the “serious problem” posed by foreign  jihadists.  The CTC suggested that Member States and EU institutions and agencies should take action on the following key measures by the end of 2013:

  • The Commission should continue to share the expertise gained from the Radicalization Awareness Network (RAN) with Member States.;
  • Member States are to reinforce their contributions to the Check the Web security portal instituted by Europol and assess the possibility for Europol to extend its mandate to monitoring and analyzing social media concerning foreign fighters.
  • The High Representative is to appoint an Arabic-speaking EU spokesperson to reach out to the Arab media.
  • Invite the Netherlands to present the results of a study designed to analyze the existing systems of monitoring or alerting suspicious travel movements.
  • Invite Eurojust to draft a report on the results of its work on foreign fighters and in particular to assess the legislation in the EU Member States, the use of administrative sanctions, and the improvement of information exchange concerning investigation and prosecution, and make specific proposals.
  • Invite FRONTEX to provide an analysis of the various routes used by foreign fighters and contribute to a proposed handbook dealing with “risk indicators” used to detect foreign fighters.
  • Invite the High Representative to assign the European External Action Service (EEAS) to send high-level diplomats to third countries, including Turkey, Jordan, Morocco, Tunisia, Libya, the countries of the Western Balkans, and others to emphasize the significance of dealing with the issue of foreign fighters and to establish concrete measures to improve the cooperation and exchange of information with those countries.
  • Invite the High Representative to prepare Heads of Mission reports concerning the situation in a third country and measures to improve collaboration and information exchange.

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Global Legal Research Directorate Staff
December 2014


[1] Press Release, EUROJUST, Anti-terrorism: Eurojust in the European Parliament – Foreign Fighters in Focus (Nov. 6, 2014), http://www.eurojust.europa.eu/press/News/News/Pages/2014/2014-11-06_LIBE-Committee-debate.aspx.

[2] MEPs Clash with EU Officials Over Foreign Fighters, EU Observer (Nov. 5, 2014), http://euobserver. com/justice/126396.

[3] Note from EU Counter-Terrorism Coordinator to Delegations, Effective Criminal Justice Response to the Phenomenon of Foreign Fighters (Oct. 14, 2014), http://www.statewatch.org/news/2014/oct/eu-council-is-strategy-14188-14.pdf.

[4] Press Release, Council of the European Union, Council Discusses Further Action Regarding Foreign Fighters (Oct. 10, 2014), http://www.consilium.europa.eu/homepage/showfocus?lang=en&focusID=114086.

[5] Note from EU Counter-Terrorism Coordinator, supra note 11. 

[6] Id. at 6.

[7] Council Framework Decision 2008/913/JHA of 28 November 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, 2008 O.J. (L 328) 55, http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID=PJyGJmFf9wpZgyDJlsRVmwBtDF6Htpg1pn0Mnqz
5g48HvtSG0Wd0!404527651?uri=CELEX:32008F0913
.

[8] Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism, 2002 O.J. (L 164) 3, http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID=NhnwJmxFwNDPTLSPlbTPvrLngnz3 Zhkd1dqTpRQXMkkYpLf3Xphv!1738154466?uri=CELEX:32002F0475.

[9] Note from EU Counter-Terrorism Coordinator, supra note 11, at 3.

[10] Id. at 4.

[11] Directive of the European Parliament and of the Council on the Use of Passenger Name Record Data for the Prevention, Detection, Investigation and Prosecution of Terrorist Offences and Serious Crime, COM (2011) 32 final (Feb. 2, 2011), http://www.statewatch.org/news/2011/feb/eu-com-eu-pnr-com-32-11.pdf.

[12] Press Release, European Parliament, Civil Liberties Committee Rejects EU Passenger Name Record Proposal (Apr. 24, 2013), http://www.europarl.europa.eu/news/en/news-room/content/20130422IPR07523/html/Civil-Liberties-Committee-rejects-EU-Passenger-Name-Record-proposal.

[13] Jeniffer Baker, EU Battles Over ‘Anti-terrorist’ Passenger Records Slurper Law, The Register (Nov. 11, 2014), http://www.theregister.co.uk/2014/11/11/this_time_they_want_all_your_passenger_data_to_
fight_terrorists/
.

[14] RAN Internal and External Dimensions (RAN INT/EXT), European Commission, Justice and Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/radicalisation_awareness_network/about-ran/ran-int-ext/index_en.htm (last updated July 4, 2014).

[15] Communication from the European Commission to the Parliament, the Council,  the European Economic and Social Committee, and the Committee of the Regions, on Preventing Radicalisation to Terrorism and Violent Extremism: Strengthening the EU’s Response, COM (2013) 941 final (Jan. 15, 2014), http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/crisis-and-terrorism/radicalisation/docs/communication_on_preventing_ radicalisation_and_violence_promoting_extremism_201301_en.pdf.

[16] Id. at 6.

[17] Id. at 7.

[18] Id. at 5.

[19] CTA, Foreign Fighters and Returnees from a Counter-Terrorism Perspective, In Particular with Regard to Syria (May 28, 2013), http://www.statewatch.org/news/2013/jul/eu-council-terr-coordinator-syria-9946-13.pdf.

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Last Updated: 06/09/2015