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)
Date: 2002-04-24
Institutions: European Economic and Social Committee
Subjects: aid to refugees, approximation of laws, immigration, political refugee, right of asylum, terrorism

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Official Journal of the European Communities

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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

The Commission working document seeks political,
1.1.
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.

The Council

1.2.
invited the Commission ‘to examine
urgently the relationship between safeguarding internal secur-
ity and complying with international protection obligations
and instruments’.

This document concerns instruments relating to the
1.3.
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.

Coordination Method (Chapter 3). Lastly, the document analy-
ses the ‘internal security’ measures contained in the Com-
munity legislation currently in force and in legislation in the
pipeline in the area of asylum and immigration (Chapter 4).

As the Commission points out,

1.5.
founded on two main premises:

the document

is

— bona fide refugees and asylum seekers should not become

victims of the recent events, and

— there should be no avenue for terrorists or those support-
ing 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 terror-
ism 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
the exclusion
preferable simply to implement some of
the Refugee
measures already included in Article 1F of
Convention when required.

1.4.
The document begins by examining the legal possibilit-
ies 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

1.7. Grounds for exclusion and their application to terrorism

There is no international definition of terrorism in
1.7.1.
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

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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):

2. The Committee’s comments

— 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’.

According to national case law,

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

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 individ-
uals 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.

The Commission adds that mere membership of a
1.7.3.
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.

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

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

The Committee is convinced that the right of any
2.5.
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.

(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 Melı´cias).

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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.

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.

2.7.
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.

International and regional human rights instruments
2.8.
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 terror-
ism 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

Furthermore,

2.12.
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 deter-
mine 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.

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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.

2.20.
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.

2.17.
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.

2.21.
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.

In order to counter international crimes (war crimes,
2.18.
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
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.

just under the legislation of

law, and not

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.

Recourse to certain States’ special internal guidelines
2.23.
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 suf-
ficiently respectful of human rights, or should the regime not
be genuinely democratic.

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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 (1).

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.
and migrants from the perspective of ‘internal security’.

Lastly, Chapter 4 examines asylum seekers, refugees

2.29.
Before even beginning to examine the working docu-
ment’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 (2) 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 EURO-
DAC 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.

The Committee remains in favour of suspending
2.33.
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.

(1) 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).

(2) See the ESC opinion on this subject in OJ C 311, 31.10.2000

(rapporteur: Ms Cassina).

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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 Com-
mission 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

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 con-
flicts, such as that in the Balkans. Greater solidarity is needed
in the reception of mass influxes of refugees.

3.1.
The Committee fully supports coordinated action
against terrorism at Community level and the open coordi-
nation method recommended by the Commission (1). How-
thought
ever,
regarding preventive and punitive measures, notwithstanding
the justifiable depth of emotion aroused by the unspeakable

it calls for great caution and very careful

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

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