Opinion of the Economic and Social Committee on the "Commission Working Document - The relationship between safeguarding internal security and complying with international protection obligations and instruments"

(COM(2001) 743 final)

(2002/C 149/09)

On 21 January 2002, the European Commission decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned document.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 10 April 2002 (rapporteur working without a study group: Mr Retureau).

At its 390th plenary session (meeting of 24 April 2002), the Economic and Social Committee adopted the following opinion with 92 votes in favour and one abstention.

1. Introduction

1.1. The Commission working document seeks political, legal and practical solutions in the area of internal security, i.e. the protection of European society from the presence and activity of terrorist groups and their members on EU territory, in response to Conclusion 29 of the Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001 shortly after the terrible attack in New York on 11 September.

1.2. The Council invited the Commission "to examine urgently the relationship between safeguarding internal security and complying with international protection obligations and instruments".

1.3. This document concerns instruments relating to the protection of persons seeking asylum or benefiting from that status or another protection status in a Member State. The Commission gives consideration to the protection offered not only by the Geneva Convention and its Protocol (ratified by all the Member States) but also by other international and regional texts that offer international protection to certain persons obliged for their safety to leave their countries of origin or residence and seek the protection of an EU Member State.

1.4. The document begins by examining the legal possibilities written into the instruments for excluding those persons from protection who do not deserve it, in particular those engaged in activities of a terrorist nature or other criminal activities (Chapter 1). It then looks into the legal consequences of excluding certain persons from international protection regimes (Chapter 2). It goes on to look at ways for the Member States to approximate their legal or administrative measures, and at administrative cooperation and the use of the Open Coordination Method (Chapter 3). Lastly, the document analyses the "internal security" measures contained in the Community legislation currently in force and in legislation in the pipeline in the area of asylum and immigration (Chapter 4).

1.5. As the Commission points out, the document is founded on two main premises:

- bona fide refugees and asylum seekers should not become victims of the recent events, and

- there should be no avenue for terrorists or those supporting them financially or in any other way to secure access to the territory of the Member States.

1.6. Asylum is presented as a potential channel for terrorism to penetrate the EU, although this statement is immediately qualified by a recognition that this channel is an unlikely one, as terrorists have more discrete illegal routes into EU territory, in the same way as the perpetrators of criminal or other illegal activities. The Commission endorses the UNHCR's line, that rather than taking new or extraordinary measures, it would be preferable simply to implement some of the exclusion measures already included in Article 1F of the Refugee Convention when required.

1.7. Grounds for exclusion and their application to terrorism

1.7.1. There is no international definition of terrorism in the various universal or European instruments applicable in the Member States. The courts categorise it individually, depending on the circumstances surrounding each case. Article 1F of the Convention does not include it as a criterion, but terrorism can, according to the Commission, be covered by an interpretation of one or more of three categories of general criteria that can be invoked under the Convention to justify denial of the right to asylum (excluding the second category, as the crime of terrorism is in essence a political crime or one aimed at political or ideological objectives):

- a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments;

- a serious non-political crime outside the country of refuge prior to the person's admission to that country as a refugee;

- responsibility for acts contrary to the purposes and principles of the United Nations(1).

1.7.2. According to the case law and various resolutions of the UN General Assembly and Security Council referred to by the Commission, terrorism is clearly grounds for exclusion on the basis of the relevant criteria listed in the first paragraph of Article 1F. Regarding the third paragraph, in Resolution 1373 of 28 September 2001 the UN General Assembly stated that "acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations" and that "knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations".

1.7.2.1. According to national case law, these acts of terrorism involve in particular the hijacking of planes or other vehicles, hostage-taking and bomb attacks, etc.

1.7.3. The Commission adds that mere membership of a terrorist group can in certain cases amount to personal and knowing participation, or acquiescence amounting to complicity, although the circumstances of each case and the actual level of involvement must be taken into consideration.

1.7.4. The Commission concludes that terrorism can constitute grounds for refusing or withdrawing refugee status or another form of protection.

2. The Committee's comments

2.1. The European Economic and Social Committee is fully in favour of devising a global and coordinated strategy for fighting terrorism at European level and of harmonising procedures for defining and punishing the crime of terrorism. The Union has every right to protect any person living in or passing through its territory, and public and private property, against terrorist attack, and also to prevent groups or individuals from planning, organising or financing such attacks.

2.2. The causes of terrorism, both in the EU and in third countries, are complex and are often the upshot of political and ethical crisis situations, with ideological, political, religious or nationalist motives etc. As a result, the response should as far as possible be preventive and tailored to the root causes. This may call for various approaches, such as the search for peaceful conflict resolution, criminal prosecution, or economic and social measures. Europe's responses must be measured, and tailored to the causes and nature of the threats.

2.3. The Committee therefore wonders whether targeting asylum policy in this strategy is really useful, and fears that it could lead to restrictive measures that run contrary to the Convention or limit human rights. The Committee does however accept that paragraphs a) and c) of Article 1F could, if necessary, provide an acceptable legal basis for exclusion from refugee status or another form of protection, providing there is evidence that the protection offered was actually being used to commit acts of terrorism.

2.4. The Committee would refer in particular to its opinion(2) on the draft directive on minimum standards for granting and withdrawing refugee status, and the principles espoused therein.

2.5. The Committee is convinced that the right of any person to claim the right to seek asylum must not be questioned, and that the principle of the non-refoulement of asylum seekers must be rigorously upheld, not least in crisis situations and where there is a threat to peace or security, calling for greater vigilance on the part of the authorities.

2.6. As the Commission itself has stated, asylum seeking is not a common way for terrorists to gain access to a country and refugee status is not the best cover for involvement in terrorist activities, even though this hypothesis cannot a priori be completely ruled out.

2.7. The absence of an international or common definition of terrorist crime also poses a problem. The risk of stretching the interpretation of grounds for exclusion and applying them to cases that are not directly related to the preparation and carrying out of criminal acts generally defined as terrorist acts by the laws and courts of the Member States must not be underestimated.

2.8. International and regional human rights instruments must be a permanent reference for interpreting and applying the Convention and Protocol on the protection of refugees. Regional instruments include the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Convention for the Prevention of Torture. The right of asylum is explicitly covered by the Charter of Fundamental Rights unveiled at Nice.

2.9. More specifically, the right to a defence and to a fair trial cannot be suspended because of suspicion of or incrimination for terrorism. The legitimate fight against terrorism must not become an argument for reducing the level of safeguards and protection or for ignoring the principle of non-refoulement.

2.10. The Committee would also point out that many countries use the term "terrorist" to describe internal or exiled political opponents. The real circumstances of each case must be considered, and there must be an objective inquiry, underpinned by concrete evidence, making certain not to stretch the interpretation of certain provisions or extrapolate by analogy in order to define certain acts as terrorism or as equivalent to terrorism and thereby incriminate a person claiming or enjoying protection.

2.11. The Committee is therefore concerned about the distinction made between the standard of proof required in a criminal court, and that required for excluding or withdrawing protection status. It is enough to have "serious reasons for considering" that the person has committed or has been an accomplice in a crime defined as terrorism, also by "inciting", without necessarily having to prove that the person committed the crime (1.4.4). The Committee calls for proof of the crime to be provided, or at least for a sufficiently thorough investigation that yields substantive and concurring evidence of involvement in an activity intended to cause or causing damage to persons and property with the aim of causing terror. Suspicions alone are not enough.

2.12. Furthermore, if a decision is taken to refuse to grant the protection of the Convention or another form of international protection, this should not necessarily lead to deportation to the country of origin or a third country, particularly not to a country where human rights would not be fully assured to the degree that they are on EU territory. The same principle must apply in the case of extradition cases. However, the document is fairly vague on this subject and clarification is needed. The withdrawal procedure must not automatically be extended to close friends and family members, unless their involvement in terrorist activity can be proved.

2.13. Furthermore, the Committee is very concerned about the danger, in working papers on the fight against terrorism, of making or at least suggesting a connection between people seeking asylum or international protection and people guilty of terrorism or, in another area, between migrant workers and terrorism.

2.14. The document does not view terrorism as a "crime against peace". The Committee however feels that acts of war perpetrated in peacetime and aimed at provoking internal armed confrontations or a military or dictatorial coup, or at inflaming a dispute between countries in order to provoke a military escalation, could be defined as crimes against peace.

2.15. Conversely, in wartime, the definition of certain acts as "terrorist acts" must be used only with the greatest care. The actions of liberation movements, in particular those recognised by the UN, resistance to armed intervention from outside, with the exception of interventions decided on by the UN Security Council, and acts of war by opposition groups in a civil war situation are generally defined by the adversary as terrorist acts, while considered legitimate by the other party. It is therefore necessary to consider the nature of the political regime, the causes of the conflict, the possible legitimacy of the means used, for instance against a totalitarian or dictatorial regime or illegitimate armed intervention, in order to determine for each case, on an objective basis, the acts that may be termed as "terrorism", war crimes, crimes against peace, or contrary to the purposes and principles of the United Nations.

2.16. Furthermore, for terrorist acts to qualify as war crimes they must be grave and committed in a context of relatively generalised armed confrontation or sufficiently intense or large-scale armed operations, and conducted over a prolonged period, by armed guerrilla or paramilitary groups, against the civilian population or democratically appointed officials.

2.17. Lastly, the Committee considers that the resolution of the UN General Assembly, adopted in a period of heightened international emotion and considering the crime of terrorism as being contrary to the purposes and principles of the United Nations, must also be interpreted as stated for Article 1F of the Convention, in the light of the conventions and customary principles governing human rights. The interpretation of acts considered in this light must not be stretched or extrapolated by analogy in order to define them as terrorist acts and, as a result, contrary to the purposes and principles of the United Nations.

2.18. In order to counter international crimes (war crimes, crimes against humanity - or "lese-humanity" under the Inter-American Convention -, or genocide) more effectively, Member States should consider equipping themselves with powers of international jurisdiction. Persons guilty of those crimes would not then be tempted to seek any form of protection in a Member State where they would be in danger of being tried for crimes committed in a third country.

2.19. The Committee wonders whether it might be better to "freeze" requests or status, rather than declaring "inadmissible" claims made by people in cases where an extradition request or an indictment by an International Criminal Court has been made as a result of a United Nations decision or convention (1.4.2). When the extradition request is submitted by a criminal court in the claimant's country or another country on the grounds of a "serious crime", there should be a thorough investigation into the real nature of the crime, and checks on whether it really qualifies as crime in the eyes of European criminal law, and not just under the legislation of the requesting country, which may define as a "crime" public political demonstrations or the expression of "subversive" ideas, etc. If the court finds in favour of the claimant, the request for asylum could be taken up again at the point at which it had been "frozen", or the protection status could take full effect once more. Conversely, inadmissibility or withdrawal could be applied if the court definitively ruled that the person was guilty of a serious crime or terrorist activity justifying the refusal or withdrawal of protection status.

2.20. Refoulement or extradition must take into account the possible fate awaiting the claimant or beneficiary whose right has been withdrawn in the country of refoulement or extradition. Well-founded fears of capital punishment, torture or other inhumane or degrading treatment should be a firm argument against the refoulement or extradition of anyone, even if their acts justify refusal or withdrawal of protection status.

2.21. As to whether the granting of economic and social rights to people who are excluded from protection but who cannot be expelled constitutes a "pull" factor towards countries which grant those rights, the Committee thinks that it would be wrong to align on countries which do not even accord the most basic human rights. The fundamental socio-economic rights which should be granted, with reference notably to the Nice Charter and the European Social Charter, should be equivalent in all the Member States, so as to enable these people legally to meet their basic needs, and where appropriate those of their families. Member States should come to an agreement on this point.

2.22. On the subject of setting up special units to deal with exclusion cases, and in view of the very limited number of cases likely to arise, the Committee feels that it might be preferable, in cases of serious doubt, to call on agents or judges specialised in the fight against terrorism or criminal law, on a case by case basis, to back up the departments responsible for examining requests. In view of the limited number of cases expected, the permanent establishment of specialised exclusion units carries the risk of their being used to excess owing simply to the fact that they exist, and, as a result, of an unjustified increase in the number of rejections.

2.23. Recourse to certain States' special internal guidelines on exclusion in the interests of "best practice" could carry similar dangers. This does not rule out however the need for an examination to avoid excessively different or even contradictory interpretations of the Convention's exclusion clauses. The "European" lists of excluded persons, proposed as part of the information exchange mechanism (1.5.3), also bring a risk of unfair exclusion, should the criteria not be uniform or the lists not kept properly up-to-date. For instance, a person who has been extradited might subsequently have been acquitted of serious criminal charges. There are also issues of data protection and respect for privacy. This is especially true in relations with the country of origin of the person concerned, should that country not have the same standards regarding data protection, should it not be sufficiently respectful of human rights, or should the regime not be genuinely democratic.

2.24. The Committee agrees that establishing common definitions, or at least a list of acts that can unequivocally be termed acts of terrorism, would be helpful. However, it is concerned that the wordings used may be too general, making them susceptible to being applied to situations that have no relation to terrorism, as in the case of political or social conflicts for instance. The requirements in terms of evidence must be strict and the personal degree of involvement of the person must be taken into consideration. Nonetheless, the Union needs convergent, universally accepted criteria to avoid any risk of slippage or of significant divergences in assessments.

2.25. A separate problem arises regarding the treatment of people who have been excluded from protection status but who cannot be "expelled", and who are suspected of being guilty of serious crimes or terrorism. If they do not fall within the jurisdiction of an international court, thought must be given to ways of trying them (universal jurisdiction) and more generally dealing with them, in accordance with human rights obligations, during their presence on Community territory. The Committee is aware that this is a difficult issue and that detention must be justifiable under domestic law and under international human rights law. House arrest might be another alternative, but that would be to deny justice to the victims, should a crime go unpunished.

2.26. As regards Chapter 3 on the approximation of legislation and administrative practices, the Committee would refer to its opinion on minimum standards for refugee status(3).

2.27. The Committee would nevertheless stress that an accumulation of additional rules must not be allowed to lead to a more restrictive common approach. It points out that increasingly diverse ways of questioning the rights and physical or moral integrity of people, not necessarily on the part of a State, call for a more open and extensive approach to the Geneva Convention. The Union must define itself as a place where human rights are universally protected, and adapt its asylum policy accordingly.

2.28. Lastly, Chapter 4 examines asylum seekers, refugees and migrants from the perspective of "internal security".

2.29. Before even beginning to examine the working document's proposals, the Committee wishes to stress that no link should be made or even suggested between international terrorism and asylum seekers or migrants. The mere suggestion officially of the possible existence of such a link could encourage xenophobic and racist organisations and ideas. On the contrary, in accordance with the Union's anti-racism and anti-discrimination policies, efforts should be made to prevent the spread of these intolerant notions.

2.30. The document recommends a review of existing Community internal security measures "in the light of the new circumstances". While there has been an escalation in the level of terrorist crimes committed in the United States, it should be noted that the organisation said to be responsible is currently being hunted down internationally, and the risk of terrorist activities remains constant. If the provisions currently applying in Europe prove to be ineffective in protecting European territory or if they allow the EU to be used as a base for organisations operating in third countries, they should be revised. The Committee would recommend conducting such a study and then going on to plan changes or adjustments that prove useful in the light of that study.

2.31. The granting of temporary protection in cases of mass influxes of refugees(4) must not mean that the people concerned are granted less protection; and this temporary protection must not become a permanent substitute for asylum. The rules governing exclusion from that protection must be as strict as those relating to the protection arising from the right to asylum and refugee status.

2.32. The Committee would question whether the EURODAC identification system is really acceptable for asylum seekers, who are not committing any crime and are simply asking to benefit from an internationally recognised right. This system, which was approved by the Council as part of a reinforcement of internal security, jumbles asylum seekers with people who have crossed borders illegally, collecting their identities and their fingerprints in order to make them accessible to all European police forces.

2.33. The Committee remains in favour of suspending the asylum procedure in the case of international criminal procedures or extradition cases, as explained earlier, as opposed to immediate exclusion under the inadmissibility procedure.

2.34. With regard to point 4.3.2 of the Commission document, the Committee would underline that the criterion of financing an organisation linked with terrorism must be treated with care. Charities, aid organisations and political organisations can be linked with terrorism without the donors realising. It must therefore be proved in all cases that the donors are fully aware that their contributions go directly towards financing terrorist activities.

2.35. Furthermore, participation in political, trade-union, religious or other associations should not be assimilated with terrorist activities simply because members or leaders of those associations have proven links with the perpetrators of terrorist crimes. There must be proof of criminal intent and conscious and fully-informed involvement; and this is not demonstrated by mere membership of an association of this kind, which may have a legal or de facto presence in an EU or third country.

2.36. The fact that an organisation that would not involve itself in actions of a terrorist nature might offer political justification for armed actions under certain circumstances while itself advocating peaceful political action should not mean that it and its members and the people who support it financially are automatically accused of complicity in terrorism.

2.37. The Committee would suggest that a common and restrictively defined conception of the crimes of terrorism and complicity in terrorism can be reached using the open coordination method envisaged by the document.

2.38. In point 4.4.3 of its working document, the Commission proposes amending various articles of the proposed directive on the status of third-country nationals who are long-term residents. These proposals include the deletion of Article 13(7) which prohibits the use of emergency expulsion procedures against long-term residents. The Committee thinks that in cases where there are grounds for believing that a long-term resident poses a terrorism-related threat, the ordinary expulsion procedure should be used.

3. Conclusions

3.1. The Committee fully supports coordinated action against terrorism at Community level and the open coordination method recommended by the Commission(5). However, it calls for great caution and very careful thought regarding preventive and punitive measures, notwithstanding the justifiable depth of emotion aroused by the unspeakable attacks perpetrated in the United States on 11 September, and other terrorist crimes committed in various EU and third countries.

3.2. It calls on the Commission, and more broadly on all the institutions, to ensure that common anti-terrorism policies and measures respect international commitments, in particular universal and regional instruments aimed at protecting human rights. In all cases, priority must be given to safeguarding the rights and dignity of refugees and asylum seekers.

3.3. The principle of non-refoulement must continue to shape common and national policies relating to refugees and asylum or protection seekers. Every case must be examined individually, and effective means of appeal must be made available to anyone refused protection.

3.4. Lastly, policies relating to refugees and asylum seekers must not be confused with policies relating to migration. Furthermore, these policies must not in any way foster racist or discriminatory ideas that seek to make people from third countries scapegoats for social problems and crime, and incite hatred and the rejection of "strangers".

3.5. The right to seek asylum and protection under the Geneva Convention and Protocol or other forms of protection must not under any circumstances be undermined or denied by anti-terrorism, internal security or migration policies, or by emergency responses to influxes of refugees caused by conflicts, such as that in the Balkans. Greater solidarity is needed in the reception of mass influxes of refugees.

3.6. While reasserting that the safeguarding of human rights and international protection instruments must be given priority over all other considerations, the Committee is aware that the common policy for internal security and fighting terrorism needs improving. Without questioning political and humanist ethics there must be effective protection for people and property, and to that end a balance must be struck between the differing requirements involved in protecting the various rights and freedoms.

Brussels, 24 April 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) See on this subject the special set of guidelines and individual positions taken on the application of the provisions of this article published by the UNHCR.

(2) See OJ C 193, 10.7.2001 (rapporteur: Mr Melícias).

(3) See the ESC opinion on the Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (Rapporteur: Ms Le Nouail-Marliere).

(4) See the ESC opinion on this subject in OJ C 311, 31.10.2000 (rapporteur: Ms Cassina).

(5) See the ESC opinion on this subject, to be adopted at the plenary session on 29-30 May 2002 (rapporteur: Ms zu Eulenburg).