Currently, the Council of the European Union and the European Parliament are negotiating a new Directive on combating terrorism. The original Framework Decision of 2002 – updated in 2008 – is considered the cornerstone of European Union efforts to tackle terrorism. It defines what a ‘terrorist offence’ is and requires member states to incorporate this definition into their national laws as a distinct offence; at the time of the adoption of the 2002 Framework Decision only eight of the then fifteen member states had specific legislation criminalising terrorist offences. Charting the changes concerning the definition of terrorism in the Framework Decisions of 2002, 2008 and the new Directive shows what is considered a terrorist offence has undergone substantial change, provoking the question whether terrorism has acquired a new meaning in the process. This, in turn, has affected the nature of interventions in the name of security and the standards promoted under the rule of law.
While the text of the proposed Directive has no fixed form yet, it is worthwhile to compare the three documents to foreground some of the changes in the definition. Speaking of a definition of terrorism in terms of there being a singular phenomenon is already quite difficult. Indeed, Article 1 of the 2002 Framework Decision defines what a ‘terrorist offence’ is, but subsequent Articles show there is much more to terrorism than just this offence. Article 2 introduces the notion of a ‘terrorist group’ and criminalises the ‘directing’ of and ‘participating’ in its activities. To further complicate the picture, Article 3 introduces several so-called ancillary offences, which are offences ‘linked to terrorist activities’ (i.e. ‘aggravated theft’, ‘extortion’, ‘drawing up false administrative documents’). As a last step, Article 4 allows to punish actions ‘inciting, aiding or abetting, and attempting’ certain offences defined in Articles 1 and 2. Terrorism appears as a multidimensional rather than a singular phenomenon.
The 2008 amendment adds three more ancillary offences: ‘public provocation to commit a terrorist offence’, ‘recruitment for terrorism’, and providing ‘training for terrorism’ with the purpose of committing a terrorist offence. A further addition stipulated with regard to these offences that ‘it shall not be necessary that a terrorist offence be actually committed’. The proposed Directive of 2015 includes another set of ancillary offences: ‘[r]eceiving training for terrorism’, ‘[t]ravelling abroad for terrorism’, and ‘[o]rganising or otherwise facilitating travelling abroad for terrorism’. Compared with the 2008 amendment, the new Directive intends to apply the scope of ‘[a]iding or abetting, inciting and attempting’ to a broader range of offences. All in all, with regard to the definition of terrorism, three layers can be discerned. First, the definition of a terrorist offence, second, ancillary offences, and third, offences that have a facilitative character (‘aiding or abetting, inciting and attempting’).
Striking about the EU’s definition of terrorism is that most changes have been forthcoming with regard to the category of ancillary offences; the definition of a terrorist offence has remained unchanged since the 2002 Framework Decision. What this signifies is an increasing interest in anticipatory action. By introducing ancillary and facilitative offences, authorities can intervene early on in order to prevent violent attacks before they materialise. While this seems attractive, as it increases the options available for the authorities to tackle terrorism, there are serious complications with such a course of action. The central concern is that the activities covered by ancillary and facilitative offences are acted upon on the basis of suspicion rather than hard evidence: they might lead the perpetrator to commit a terrorist offence, but not necessarily so. Acting in anticipation, which ancillary and facilitative offences make possible, thus raises the question of exactly what standard of evidence applies in convicting suspects and the effect this has on fundamental rights.
The expansion of the number of ancillary offences and the scope of facilitative offences means that the threat or use of violence for political purposes becomes less central in what terrorism is about. Telling in this respect is that for ancillary offences, as introduced by the 2008 amendment and sustained in the current proposed Directive, ‘it shall not be necessary that a terrorist offence be actually committed’. With the attention to ancillary and facilitative offences, it becomes less evident what is distinctive about terrorism. This prompts the question what justifies retaining terrorism as a distinct offence? Rather than expanding the number of ancillary and facilitative offences, negotiations on the proposed EU Directive on Combating Terrorism might benefit more from bolstering the rule of law in order to create more legal certainty rather than less.