New Human Rights Challenges in Countering Terrorism: a Council of Europe Perspective

by Ivan Koedjikov 1

The seminar will look into the changing faces of terrorism and explore the question, is it possible to perpetuate Human Rights while dealing with new terrorist threats, or are we bound to face tomorrow’s challenges with yesterday’s tools and therefore accept that at least occasionally, not only Human Beings but also Human Rights will fall victim to terrorism?

This lecture will argue that Human Rights and the principles elaborated for their protection will remain valid even if the development of technology and the evil creativity of terrorists will continue to test them. It will use mostly, although not exclusively, references to Council of Europe international law conventions, as well as non-binding, “soft law” recommendations by the Committee of Ministers of the Council of Europe and the applying of these standards by the European Court of Human Rights.

Defining terrorism

The origins of terrorism can be traced back to the 1st century AD sicarii, or dagger-men who resisted the Roman rule in the province of Judea. Although not terrorists in the present day sense, the sicarii carried some characteristic features of terrorism – they were non-state actors attacking (a foreign) pubic authority in order to achieve a political aim (to obstruct a coming census and taxation and eventually overthrow Roman rule), trough striking at civilian political opponents and instilling fear greater than the attacks themselves 2.

The words “terrorism” and “terrorist” first appeared in a dictionary in 1798, in the Fifth edition of the “Dictionnaire de l’Academie Francaise - revu, corrige et augmente par l’Academie elle-meme”. The words are defined in reference to the arbitrary mass executions during the 1793-

1 Ivan Koedjikov is Counter-terrorism Coordinator and Head of Action against Crime Department, Directorate General of Human Rights and Rule of Law in the Council of Europe. The opinions expressed in this text do not necessarily reflect the official policy of the Council of Europe. The text contains references to Council of Europe material, which can be used as described

here: http://hub.coe.int/web/coe-portal/disclaimer .2 The Roman historian Flavius Josephus wrote: “…there sprang up another sort of robbers in Jerusalem, which were called

Sicarii, who slew men in the day time, and in the midst of the city; this they did chiefly at the festivals, when they mingled themselves among the multitude, and concealed daggers under their garments, with which they stabbed those that were their enemies; and when any fell down dead, the murderers became a part of those that had indignation against them; by which means they appeared persons of such reputation, that they could by no means be discovered. The first man who was slain by them was Jonathan the high priest, after whose death many were slain every day, while the fear men were in of being so served was more afflicting than the calamity itself; and while everybody expected death every hour, as men do in war, so men were obliged to look before them, and to take notice of their enemies at a great distance; nor, if their friends were coming to them, durst they trust them any longer; but, in the midst of their suspicions and guarding of themselves, they were slain. Such was the celerity of the plotters against them, and so cunning was their contrivance”. The Wars of the Jews or History of the Destruction of Jerusalem, Chapter 13 (translated by William Whiston).

1

1974 regime of terror in France 3. Revolutionary terror also sought to achieve political aims through attacking political opponents, but was organised and implemented by the public authorities of a State.

As the two examples above indicate, the main obstacle to developing a globally accepted definition of terrorism is the lack of agreement on when, by whom and under what circumstances the use of violence can be legitimate. The persistent disagreement about the use of violence in the post-World-War-II self-determination conflicts has given rise to the saying, one man’s terrorist is another man’s freedom fighter.

Nevertheless, since 1963 the international community has agreed upon 18 universal legal instruments (sometimes referred to as sectorial instruments) meant to protect from and punish specific types of terrorist acts. Most of these conventions were drafted in response to developing patterns of terrorism, such as aircraft hijacking, terrorist bombings, attacks on the safety of civil aviation and subsequently, the use of aircraft to attack ground targets. The provisions developed for civil aviation were extended to cover maritime navigation and platforms fixed on the continental shelf. Attacks against internationally protected persons (Heads of State, Diplomats), taking of hostages, terrorist bombing, terrorist financing, nuclear

3 Terrorisme - système, régime de la terreur (system, regime of the terror). Terroriste - agent ou partisan du régime de la Terreur qui avoit lieu par l'abus des mesures révolutionnaires (agent or partisan of the regime of the Terror which takes place through abuse of revolutionary measures).

2

terrorism were outlawed and so was the use of unmarked plastic explosives 4. Most of these instruments also contain provisions on international co-operation.

Experts count over 100 definitions of terrorism and identify more than 20 main constituent elements thereof 5. The latter are usually divided into objective, i.e., the commission of a serious crime, and subjective, i.e., the motivation and intention of the perpetrators. The definitions of terrorism, both in national and international law usually draw on both elements, in varying levels of detail, in diverse combinations of components and with different balance between objective and subjective.

4 The 1963 Convention on Offenses and Certain Other Acts Committed on Board Aircraft clarified jurisdiction issues, gave broad powers to captains including to arrest passengers, mandated arrest of wrongdoers and return of aircraft to lawful owner. In mentioned hijacking in Art.11;

The 1970 Convention on the Suppression of Unlawful Seizure of Aircraft (“The Hague convention”) criminalised seizure of aircraft by any form of force or threat or intimidation, reaffirmed the principle aut dedere aut judicare and set out provisions on mutual legal assistance;

The 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (“The Montreal civil aviation convention”) outlawed in particular attacking another person or placing explosive devices on board;

The 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation extended the action of the Montreal convention to airports. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (“The maritime convention”) and the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf (“The fixed platforms protocol”) introduced regimes similar to that of the Montreal Convention;

The 2005 Protocol to the maritime convention criminalised the use of ships for acts of terrorism, transport of terrorist materials or terrorists and established procedures for boarding a suspect ship; The 2005 Protocol to the fixed platforms protocol extended a similar regime to platforms;

The 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomats criminalised intentional murder, kidnapping or violent attack on official premises, private accommodations and transport of Heads of State, Ministers, representatives of international intergovernmental organisations and diplomats;

The 1979 International Convention against the Taking of Hostages criminalised acts of seizing, detaining, threatening to kill, to injure or to continue to detain another person in order to compel a third party … to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage;

The 1980 Convention on the Physical Protection of Nuclear Material criminalised acts such as the unlawful possession, use, transfer, theft or threats to use nuclear material. The 2005 Amendments to the Convention on the Physical Protection of Nuclear Material this convention put positive obligations on States to protect nuclear material, extended co-operation arrangements to locate and recover nuclear material and to mitigate negative consequences;

The 1991 Convention on Marking of Plastic Explosives for the Purpose of Detection established rules for the prohibition prevention of the manufacture and movement of unmarked plastic explosives, and for the destruction of stockpiles. This convention was adopted in the aftermath of the Pan Am Flight 103 attack over Lockerbie in 1988;

The 1997 International Convention for the Suppression of Terrorist Bombings created universal jurisdiction over the unlawful, intentional use of explosives with intent to kill or destruct in a public place;

The 2005 International Convention for the Suppression of acts of Nuclear Terrorism criminalised acts of terrorism or credible threats thereof against nuclear power plants, reactors and other facilities, confirmed the principle of aut dedere aut judicare, and established provision for information sharing and dealing with crisis situations;

The 1999 International Convention for the Suppression of the Financing of Terrorism required parties to prevent the financing of terrorists including through groups claiming to have charitable, social or cultural goals or engaging illicit drug trafficking or gun running, committed States to hold those who finance terrorism criminally, civilly or administratively liable and provided for the identification, freezing and seizure of funds allocated for terrorist activities. Bank secrecy is no longer adequate justification for refusing to cooperate;

The 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Supplementary Protocol thereto (“The Beijing convention and protocol”) built on the provisions of The Hague and the Montreal conventions to cover

3

Finally, the concept of terrorism is inevitably emotional and may carry political overtones. In his address to the 20 January 2003 Security Council ministerial meeting on terrorism then UN Secretary General Kofi Annan warned of certain risks in this context: “Internationally, we are seeing an increasing use of what I call the “T-word” - terrorism - to demonize political opponents, to throttle freedom of speech and the press, and to delegitimize legitimate political grievances. We are seeing too many cases where States living in tension with their neighbours make opportunistic use of the fight against terrorism to threaten or justify new military action on long-running disputes.  Similarly, States fighting various forms of unrest or insurgency are finding it tempting to abandon the slow, difficult, but sometimes necessary processes of political negotiation for the deceptively easy option of military action”. 6

The Council of Europe

Before turning to our action against terrorism, let me say just a few words on the Council of Europe itself.

The first post-World-War-II pan-European organisation was set up in May 1949 to safeguard and promote respect for human rights democracy and the rule of law and thus prevent the destruction, suffering and death brought by the war from happening again. Our founding fathers’ dream was of one Europe sharing the same “spiritual and moral values, which are the common heritage of the European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”.7 This aim is pursued through “discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms” 8

From its inception, the Council of Europe was strongly based on values and so it differs from other international bodies such as the European Union, which grew from the initial visionary idea of sharing the management of resources (coal and steel) rather than waging wars for controlling them, or indeed from the United Nations, which were built on the idea of

hijacking of aircraft by modern technological means, the use of civil aircraft as a weapon or to transport or discharge dangerous biological, chemical or nuclear materials, as well as cyber attacks on air navigation facilities etc. These instruments cover also threats and conspiracy to commit terrorist acts. They were developed in response to the 9/11 attacks. The Beijing convention and protocol have not yet entered into force.5 Cf Alex P. Schmid, Albert J. Jongman, Political terrorism: a new guide to actors, authors, concepts, data bases, theories, and literature, Amsterdam, 1988.6 http://www.un.org/News/Press/docs/2003/sgsm8583.doc.htm 7 Statute of the Council of Europe (ETS No.1), preamble.

http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=001&CM=8&DF=25/05/2014&CL=ENG 8 Id., Art 1 b.

4

maintaining international peace through collective action, for which UN members conferred primary responsibility to the Security Council.

One can think of the Council of Europe as of a democratic State, based on a trias politica. The Committee of Ministers of Foreign affairs (or their permanent diplomatic representatives) is a strong “executive branch”. Its decisions are binding for the member States. It adopts and amends European standards, monitors the compliance of member States with the decisions of the European Court of Human Rights and other statutory and conventional obligations, and it directs outreach co-operation work aimed at assisting member States to increase their capacity to fulfil their Council of Europe commitments. The Committee of Ministers holds the power of the purse – it establishes a biennial budget for the Organisation.

A “parliamentary branch” – the Parliamentary Assembly of the Council of Europe, is composed of over three hundred members of national parliaments. It is a forum for debate, reflecting political opinion across Europe, but it also exercises democratic oversight over the Governments’ record of respecting Human Rights, democracy and the rule of law. The Assembly is often the first Council of Europe body to take up new ideas and address future challenges, which find their way to the agenda of the Governments as a result of parliamentary initiative. Unlike the Committee of Ministers’ meetings, the sessions of the Parliamentary Assembly are open to the press, making the parliamentary debates resonate with the public opinion. The adopted texts, albeit not binding for the Governments, carry considerable political weight. 9

The “judiciary” – the European Court of Human Rights, composed of independent Judges - one from every Council of Europe member country, rules on individual or State applications about violations of the human rights protected by the European Convention of Human Rights. Its rulings are binding for the member States. The judgments delivered by the Court over the years form a body of case law, which clarifies the European Convention of Human Rights. 10

Finally, a “local authorities” branch – the Congress of Local and Regional Authorities, composed of over 600 locally elected officials. The Congress promotes local and regional self-governance, based on the principles of the European Charter of Local Self-Government, as well as trans-border co-operation between regions and cities.11

International Treaty Law and “Soft Law”

9 http://www.assembly.coe.int/nw/Home-EN.asp10 http://www.echr.coe.int/Pages/home.aspx?p=home 11 http://www.coe.int/t/congress/default_en.asp

5

When considering questions of common concern for which it does not have the technical competence, the Committee of Ministers draws terms of reference for Steering Committees composed of Government experts knowledgeable in a given field; the experts work on the matter at hand and report back to the Committee of Ministers. The latter decides whether the result merits becoming a Council of Europe convention, to be signed and ratified by member States, or as the case may be in areas where agreement proves more difficult, the result is to be presented in a non-binding shape, such as a Recommendation, Guidelines, Declaration or other expression of the position of Committee of Ministers. In this way, to date the Council of Europe has produced 214 conventions (including their amending protocols) and a far greater number of non-binding instruments.

The non-binding positions adopted by the Committee of Ministers are often described as “soft law”. In certain cases, especially where the European Convention of Human Rights is not sufficiently detailed, the Court may refer to a Committee of Ministers non-binding document in support of its judgment – in this way, for a specific case concerning one or more member States, the “soft law” may indeed become binding.

The intergovernmental Steering Committee that drives the Council of Europe Counter-Terrorism action is the Committee of Experts on Terrorism (CODEXTER) composed of representatives of all of the Council of Europe member States, as well as States and international organisations having observer status (UN, EU, OSCE and OAS).

CODEXTER drafted the Council of Europe Convention for the Prevention of Terrorism and a number of important soft law instruments. It functions as an intergovernmental platform where counter-terrorism standards can be negotiated, drawing on its members’ solid technical and legal expertise. Its main objective is to monitor the existing instruments, to identify gaps in international law, to propose solutions and new action against terrorism. 12

As other international organisations, in the wake of the terrorist attack on the World Trade Centre in New York in September 2001, the Council of Europe gave priority to its action against terrorism. Work focused on three main pillars, which have always supported our action against terrorism: strengthening legal action against terrorism – bringing the terrorists to justice, safeguarding the fundamental European values and addressing the deeper causes conducive to terrorism.

Bringing terrorists to justice

Historically, the first counter-terrorism measures agreed by the Council of Europe sought to limit the scope of offenses that could be seen as political and therefore be used as a reason

12 http://www.coe.int/t/dlapil/codexter/overview_en.asp

6

to refuse to extradite or prosecute terrorists. From the outset, the Organisation treated terrorist acts as serious, but nevertheless common crime.

In 1974, in its first Resolution (74) 3 on international terrorism, the Committee of Ministers resolved that the member States of the Council of Europe, when applying domestic or international law, “should take into consideration the particularly serious nature of [terrorist] acts when they create a collective danger to human life, liberty or safety; when they affect innocent persons foreign to the motives behind them; or when cruel or vicious means are used in their commission”. 13 If a member State refuses extradition, it should submit the case to its competent authorities for the purposes of prosecution as in the case of a serious crime under the law of that state.

Against the background of the politically motivated terrorist acts of 1970s 14, the Council of Europe not only reaffirmed the rule aut dedere aut judicare, but also introduced a very important principle - that terrorists are to be treated as ordinary criminals.

In May 2005, the Heads of State and Government of the Council of Europe, at their Third Summit in Warsaw, confirmed forcefully that that “terrorism is unjustifiable under any circumstances and in any culture”. 15

The 1977 European Convention on the Suppression Terrorism 16, in addition to taking up the terrorist offenses already defined in the universal legal instruments, added “the kidnapping, taking of hostage or serious unlawful detention” and “the use of bomb, grenade, rocket, automatic firearm or parcel bomb if this use endangers persons”. The Parties to the convention undertook not to consider these acts as political offenses. In this way, the Council of Europe sought to further refute political justification terrorism.

In 2005, the Council of Europe Convention on the Prevention of Terrorism 17 established as criminal offences acts that may lead to the commission of terrorist offences, such as: public provocation, recruitment and training and other, ancillary offences. The convention sought to

13 Council of Europe Committee of Ministers, Resolution (74) 3 on International Terrorismhttp://www.coe.int/t/dlapil/codexter/Source/CM_Resolution%2874%29_3_EN.pdf

14 The deadliest terrorist attacks on the territory of Council of Europe member States in the early 1970s were politically motivated. Amongst them, the bombing of Swissair flight 330 over Zurich by the Popular Front for the Liberation of Palestine; the bombing of the Palermo-Torino train during the “Reggio riots” against decentralisation in Italy; the murder of the Yugoslav Ambassador in Stockholm by members of Ustasa-Croatian Revolutionary Movement (the first terrorist act perpetrated by foreigners on Swedish territory); the Irish Republican Army bombings in Aldershot, Tullyvallen, Belfast, Birmingham and London, the bombing of the Algerian consulate in Marseilles by the far right wing anti-Arab group Charles Martel, the bombing of Pan Am Flight 110 by Palestinian terrorists in Rome… 15 http://www.coe.int/t/dgap/forum-democracy/Activities/Key-Texts/Warsaw%20Declaration_en.asp Cf. para 816 CETS No.: 090, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=090&CM=8&DF=02/09/2013&CL=ENG 17 CETS No.: 196, http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=196&CM=1&CL=ENG

7

reinforce internal prevention by mandating the implementation of national prevention policies. To promote international cooperation, the text modified the existing Council of Europe extradition and mutual assistance arrangements, notably by excluding the political exception clause.

In 2008, the Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime and on the Financing of Terrorism 18 updated and broadened an earlier 1990 Council of Europe treaty 19 to take into account the fact that terrorism could be financed not only through money laundering from criminal activity, but also through legitimate activities.

This new Convention was the first international treaty covering both the prevention and the control of money laundering and financing of terrorism. It promoted quick access to financial information including on assets held by criminal organisations, as the key to successful preventive and repressive measures.

To facilitate the legal co-operation across borders, the Council of Europe has developed a number of instruments. In effect, a search for “legal co-operation in criminal matters” on the Council of Europe website brings out 33 conventions. This number alone shows the need for and the significance of legal cooperation amongst 47 states. A body called the European Committee of Experts on the Operation of Criminal Law Conventions (PC-OC) is tasked to ensure their smooth functioning. 20 The sheer volume of detailed work needed for this is surprising, given that it concerns Council of Europe member States, whose legal systems are largely compatible. Continuous progress in co-operation in the criminal justice sector can be difficult to describe without going into minute detail, but nonetheless it remains very important.

Protecting Human Rights

In 1978, the Council of Europe was the first international organisation to point out that “the prevention and suppression of terrorism is indispensable to the maintenance of the democratic structure of member States”. 21

18 CETS No.: 198, http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=198&CM=0&CL=ENG 19 CETS No.: 141, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=141&CL=ENG 20 For country information on the practical modalities and legal requirements for cooperation as regards extradition, mutual legal assistance and transfer of sentences persons, see www.coe.int/tcj

For a link to summaries of Strasbourg Court case-law relevant to international cooperation in criminal matters, see:  http://www.coe.int/t/dghl/standardsetting/pc-oc/PCOC_documents/Documents%202013/PC-OC(2011)21Rev%207%20Case%20Law%20ECtHR.pdf

21 Declaration on Terrorism, adopted by the Committee of Ministers at its 63rd session on 23rd of November 1978, http://www.coe.int/t/dlapil/codexter/Source/CM_Declaration_on_Terrorism_1978_EN.pdf .

8

In democratic States criminal justice response to terrorism must be respectful of the Human Rights of all those involved and must remain at all times strictly within the boundaries of the rule of law. Human Rights and rule of law must be respected not because violating them tends to produce more terrorist recruits that it helps stop, but because they are absolute, inalienable values.

In July 2002, the Committee of Ministers adopted Guidelines on Human Rights and the Fight against Terrorism, 22 which contain texts looking far ahead into the future, such as those on the prohibition of arbitrariness, on the need of lawfulness of anti-terrorist measures, on the absolute prohibition of torture or on the collection and processing of personal data by any competent authority in the field of State security.

The Guidelines were a forerunner to the UN Security Council resolution 1456 (2003), the first UN document requiring States to ensure that any counter-terrorism measures respect international human rights, humanitarian and refugee law.

In March 2006, the Committee of Ministers adopted a Declaration on the Freedom of Expression in the Media in the Context of the Fight against Terrorism, 23 which reaffirmed, in specific detail, the relevant Council of Europe principles, and invited media professionals to bear in mind their particular responsibilities in the context of terrorism. The declaration was followed up in 2007 by the Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis.

Two other texts cover the protection of witnesses and the collaborators of justice, the assistance to crime victims and other topics. 24

The Parliamentary Assembly of the Council of Europe condemned in the strongest possible terms the barbaric terrorist acts of 9/11 and called on the international community to give all necessary support to the US Government in dealing with the consequences of these attacks and in bringing the perpetrators to justice. 25 However, the Assembly took strong exception to the extraordinary rendition programme 26 and maintained its criticism of the violation of

22 Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism, adopted at

the 804th meeting, 11 July 2002 http://www.coe.int/t/dlapil/codexter/Source/CM_Guidelines_HR_2002_EN.pdf 23 Declaration on freedom of expression and information in the media in the context of the fight against

Terrorism Adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers' Deputies) http://www.coe.int/t/dlapil/codexter/Source/CM_Declaration_Freedom_of_expression_2005_EN.pdf

24 All Council of Europe non-binding texts relative to terrorism can be found here: http://www.coe.int/t/dlapil/codexter/otherTexts_en.asp

25 PACE Res 1258 (2001) and Rec 1534 (2001) “Democracies Facing Terrorism” http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=16943&lang=EN

26 For a brief description of the programme, cf Amy M.L. Tan, “Extraordinary Rendition, Victims’ Rights, and State Obligations”, The Josef Korbel Journal of Advanced International Studies – Summer 2013, Volume 5

9

Human Rights. Rapporteur Dick Marty (Switzerland) drafted two reports, which served as basis for adoption of corresponding PACE resolutions and recommendations. 27

The European Court of Human Rights has developed a body of case law relevant to terrorism. In particular in the aftermath of the 2001 terrorist attacks against the US, the Court has been a staunch defender of human rights and the rule of law, proving that robust national security and protection of the population against terrorism are fully compatible with maintaining the democratic safeguards and respect for human rights. 28

CODEXTER is preparing a database of the case law of the Court relevant to terrorism, which will be available in the near future.

Conditions conducive to terrorism

In the broader sense, everything that the Council of Europe does to promote Human Rights, democracy and the rule of law addresses, directly or indirectly, the conditions conducive to terrorism.

In 2005, the Action Plan adopted at the Third Summit of the Heads of State and Government of the Council of Europe endorsed intercultural and interreligious dialogue to ensure that the diversity of European cultures is a source of mutual enrichment, not conflict. The Summit also committed to a new dialogue between Europe and its neighbouring regions – the southern Mediterranean, the Middle East and Central Asia.

The Council of Europe has produced a White Paper on intercultural dialogue. 29

In the framework of Recommendation CM/Rec (2010) 7, the Organisation adopted a Charter on Education for Democratic Citizenship and Human Rights Education. The Charter reflects the growing awareness that education is a defence against the rise of violence, racism, extremism, xenophobia, discrimination and intolerance.

The Council of Europe has brought together young people from the civil society and governmental youth representatives of the European Steering Committee on Youth to launch the no hate speech movement, campaign of young people for Human Rights online. 30

27 “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states”

(June 2006) http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=11527&lang=en and “Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report” (June 2007)http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=11555&lang=EN

28 Cf Prof Ana Salinas de Frias, “Counter-terrorism and Human Rights in the Case Law of the European Court of Human Rights”, 2012

29 http://www.coe.int/t/dg4/intercultural/whitepaper_EN.asp30 http://www.nohatespeechmovement.org

10

In 2011, a group of 10 eminent Europeans prepared concluded, in a Council of Europe report entitled “Living together – combining diversity and freedom in the 21st century”, “Better common life in 21st century Europe depends relatively little on compulsion, and much more on convincing people of different cultures and beliefs that they actually need to live together, and on finding ways to make that easier”.  31

New challenges in countering terrorism

Internet

Arguably, the biggest challenge comes from the advent of Internet, which is changing profoundly our lives. The young generations read fewer newspapers and watch TV much less than their parents. Their main way of receiving and imparting information and ideas is the Internet and in particular the social networks.

Unlike printed press and TV, the information flowing over the Internet is not subject to editorial policy seeking to maintain a level of quality and veracity.

In some ways, modern society is going back to the ages before mass media existed, where the news was learned and ideas exchanged mainly at the public square or the marketplace - in an unregulated, if not chaotic way.

The common challenges facing every State are - how to deal with unlawful content on the Internet, such as child pornography, hate speech, incitement to violence or terrorism, how to address defamation and libel or violation of the right to respect for private life.  The challenge is to find workable solutions while respecting freedom of expression.

In the Council of Europe area, Internet legislation and practices differ greatly from one member to another and they are, more often than not, subject to criticism coming from various corners of the society. There is no one-size-fits-all solution and, given the diversity of Europe, there will probably never be one.

Nevertheless, there exist relevant basic principles, which are valid and must remain unchanged, and upon them a broad variety of solutions can be built to reflect the richness of societal and cultural traditions across Europe.

Article 10 of the European Convention on Human Rights consists or two parts: the first enshrines the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, and the second lists the

31 http://human-rights-convention.org/2011/05/11/living-together-combining-diversity-and-freedom-in-21st-century

11

formalities, conditions, restrictions and penalties it may be subject to in order to keep the fair balance between this right and the duties and responsibilities that go with it. 32

Law must prescribe regulation – in other words, rules must be readily accessible and predictable in their consequences. Restrictions are legitimate only if they are necessary in a democratic society – meaning that they must respond in a proportional way to a specific social need. The Convention gives a closed list of such needs: national security, territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation or rights of others, preventing the disclosure of information received in confidence and maintaining the authority and impartiality of the judiciary.

The European Court of Human Rights has given a narrow margin of appreciation to the public authorities where it comes to political expression and a broader margin in matters of religion, morals and public decency. The Court has used Article 17 of the Convention, prohibition of abuse of rights, to limit or deny free speech protection for racist, xenophobic or anti-Semitic speech, Holocaust denial and neo-Nazi propaganda. Since 1999, the Court has used the term “hate speech”, without giving it a comprehensive definition.

For the Court – and for Governments and private service providers alike - the most difficult part is evaluating the so-called “contextual variables”, the elusive circumstances that can differentiate between a legitimate, if offending political opinion and incitement to terrorism.

In dealing with freedom of expression, the Strasbourg Court case law distinguishes between general responsibilities and specific professional duties in journalism, education, politics or military. Although the Court has not yet built case law specific to the Internet professions, this seems inevitable for the future given the place of Internet in modern society.

Mass surveillance

The 9/11 attacks showed how far modern democracies are vulnerable to terrorists acting in small cells or alone and triggered an unprecedented intelligence-gathering effort using the latest digital and Internet innovations.

The growth of computing power and software development have allowed automated collection and analysis of unthinkable amounts of data. 33 Intelligence agencies collect, retain and analyse meta-data (non-content data, or “the who, when, where and how”) of phone calls, e-mail and social network exchanges. When analysed in leviathan quantities, non-content data can yield disturbingly detailed personal content information. Such information is

32 http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=8&DF=03/06/2014&CL=ENG 33 Digital data is measured in gigabytes, terabytes, petabytes and exabytes (giga meaning a billion and every next number

being 1024 times bigger than the previous one). Experts have developed easier to grasp references, such as: the complete works of Shakespeare = 5 megabytes; the print collections of the US Library of Congress = 10 terabytes; all material ever printed in the world = 200 petabytes; all words ever spoken by human beings = 5 exabytes. The biggest existing data storage centre can hold 5000 exabytes, or 1000 times all words spoken by human beings.

12

of great value for the prevention of terrorist crime, but can be difficult or impossible to distinguish from personal profiling.

As a result, the dividing line is blurred between, on the one hand, the covert individualised surveillance within the framework of an investigation, for which detailed rules and safeguards exist, and on the other hand, the secret, massive, rapidly developing surveillance largely left to the discretion of the executive branch for which the only safeguard is general democratic oversight.

In 2005, the Committee of Ministers of the Council of Europe adopted a Recommendation to member states on“special investigation techniques” in relation to serious crimes including acts of . 34 “Special investigation techniques” means techniques applied by the competent authorities in the context of criminal investigations for the purpose of detecting and investigating serious crimes and suspects, aiming at gathering information in such a way as not to alert the target persons – in other words, covert surveillance.

The recommendation formulates a number of principles, such as the need for the competent authorities to have sufficient reason to believe that a serious crime has been committed or is prepared; proportionality between the seriousness of the offence and the intrusive nature of the special investigation technique, subsidiarity, or the application of less intrusive methods if they enable adequate detection, prevention or prosecution, and procedures governing the production and admissibility of evidence in order to guarantee the principle of fair trial.

At present, CODEXTER is reviewing CM Recommendation (2005) 10 and may eventually amend it to take into account the latest developments in technology. The recommendation will continue to be applicable to investigations, whereas the surveillance and information gathering for the purposes of national security will remain outside of its scope. 35

Minority report

In 2002, Steven Spielberg’s thriller Minority Report depicted a somewhat disturbing technological future making possible a total surveillance. Much of this future is here today. Progress in sensor technology, computer power and software algorithms have allowed systems such as B.O.S.S. (biometric optical surveillance systems, for real-time individual face recognition in remotely monitored crowds), F.A.S.T. (future attributes screening technology, for the prediction of criminal intentions based on screening of physiological parameters) or statistics-based predictive policing. After face recognition comes face reading

34 CM Recommendation (2005) 10, https://wcd.coe.int/ViewDoc.jsp?id=849269&Site=CM 35 Cf Recommendation 1713 (2005) of the Parliamentary Assembly of the Council of Europe, “Democratic oversight of the

security sector in member states” http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta05/erec1713.htm ;CDL-AD(2007)016-e”Report on the Democratic oversight of the Security Services adopted by the Venice Commission at its 71st Plenary Session” (Venice, 1-2 June 2007)http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/3_cdl-ad(2007)016_/3_cdl-ad(2007)016_en.pdf

13

- algorithms are increasingly capable of analysing fleeting emotional expressions. Web-crawling software can mine social networks to distil private information.

In discussions about technology trends, one word comes up more and more often – Panopticon. In the age of Internet and social networks, we are in a panoptic society, i.e., everybody is essentially living in full view of everybody else.

In Greek mythology, Panoptes was a giant with a hundred eyes. Even when he fell asleep, there would always be several eyes awake – thus, nothing could escape the attention of Panoptes.

In effect, this is the way Humankind has lived for the longer part of its history. In tribes, in clans, in villages and even in medieval city-states, everybody lived in full view of everybody else. Only in the 18th century, industrialisation packed masses of people into big city factories and created the anonymity, from which later grew the present day concept of privacy. Big city anonymity did not come easy and was not always seen as a good thing. The same Latin root gave the noun “privacy”, but also the verb “to deprive of” (participation, or to separate from the rest of the clan or group).

Could it be that with Internet, modern society is moving towards a way of life which is closer to the historic, traditional ways of collective life? Whatever the answer to this question, it is clear that broadband and mobile Internet, total interconnection, geolocalisation and software applications putting all of the above and more to ingenious and surprising use, will not be stopped. Society will continue to develop and there will be new challenges including about how to protect ourselves from terrorism while safeguarding the privacy, freedom of expression and all other Human Rights, which form the basis of our civilisation.

14