by P. de Bruycker et D. Watt (Odysseus Omnia), H. Labayle (CDRE), A. Weyembergh et C. Brière (Eclan)
In the immediate aftermath of the terrorist attacks in Paris on Friday 13th November, the French President declared a state of emergency and announced the introduction of a number of measures to “mobilise all possible forces in order to neutralise the terrorists and to guarantee the security of all the areas which could be concerned”. These measures included the reintroduction of controls by France at its internal borders with other Schengen States in the interest of preventing both the entry into the territory of dangerous individuals seeking to carry out terrorist attacks, and to thwart the escape of the attackers.
Nonetheless, Salah Abdeslam, a suspect believed to be one of the masterminds of the attacks, managed to escape by crossing the border between France and Belgium during the night from Friday to Saturday without being apprehended and has still not been arrested since, despite significant effort on the part of the Belgian and French police forces. More surprising, although relatively ignored by the media is that he was checked by French police in the border region (around the city of Cambrai) but not apprehended. How can this have happened in the heart of the EU where border guards, police, judges and intelligence services use modern technology to trace such people?
Before putting the area of freedom, security and justice on trial – as some politicians have done – it is certainly important to objectively examine the manner in which the workings of this beast have been confronted by the reality of terrorism. Whether it has to do with controls carried out at borders (Section 1 of this article), or cooperation between national police forces (Section 2), it must be noted that the primary responsibility in this case does not rest with the mechanisms created by the European Union. In contrast, the failure to prevent the rather predictable attacks now creates the question of sharing intelligence between the competent national intelligence agencies, a matter which does not fall within the Union’s competences (Section 3).
1. The pending questions about border policy
Knowing what we know today about the Paris attacks and the background of the perpetrators, a distinction needs to be made between the matter of terrorists crossing internal and external borders of the Schengen Area.
a. The crossing of internal borders
The Schengen Borders Code (SBC) regulates the crossing of the borders of the concerned EU Member States. As outlined in an article by Evelien Brouwer on this blog, Schengen States can, on the basis of Article 23 of the SBC, temporarily reintroduce controls at their internal borders if there is clear justification on the grounds of a threat to public policy or internal security. The existence of such a threat is obviously not in question here.
Schengen States have certain instruments at their disposal to guarantee effective border management in the Schengen Area. The Schengen Information System (SIS) is a database for storing and sharing information about certain individuals who should not enter or travel within the Schengen Area. The second generation – “SIS II” – was established to include the new Member States after the 2004 enlargement by Regulation 1987/2006, which also sets out rules on its operation and use.
There are several reasons a person may be registered in the SIS. Firstly, alerts may be issued in order to refuse entry or stay to third-country nationals either because they are criminals or because their entry has been banned due to non-respect of the immigration rules (Article 24 of Regulation 1987/2006). Secondly, alerts may be issued in order to arrest third-country nationals or EU citizens on the basis of a European arrest warrant (EAW) or extradition. This type of alert applies to missing individuals, persons sought to assist with a judicial procedure, and for the purpose of discreet or specific checks (see Council Decision 2007/533).
As Salah Abdeslam is French and not a third-country national, he could not, by definition, be the object of an alert related to the immigration policy. When he was checked by the French police during the night of 13 to 14 November, he was not known to the French authorities apparently because, despite being French, he was living in Belgium. He was also not the object of an alert for the purpose of arrest as the EAW was only issued by Belgium after the attacks, on Sunday. He had however been signalled in the SIS by the Belgian authorities as a person to be the object of a “discreet or specific check”. Following Article 36 of Council Decision 2007/533, such an alert may be issued for the purposes of prosecuting criminal offences and for the prevention of threats to public security, “in particular where an overall assessment of a person, in particular on the basis of past criminal offences, gives reason to suppose that that person will also commit serious criminal offences in the future”.
Given the stated goals of the closure of French borders – to stop the escape of those who carried out the attacks – one might begin to question how it can be that the check conducted by the French police did not lead to the arrest of Salah Abdeslam. Even if he was not mentioned in the SIS for the purpose of arrest, a signal for a discreet or specific check should have attracted the attention of the police and could have lead to his arrest. One can rightly wonder what happened: was the information stored in the SIS not precise enough? In this case, did the French police use the SIRENE system to get more information from the Belgian authorities? If not, why? We are used to Schengen-bashing and recently to Belgium-bashing, could it be fair to say that this time there should be some France-bashing?
It would be interesting to get an answer to those questions in order to understand what was indeed the problem. In any case, even if there had been a problem with the SIS and not with the actions of the French Police, it is clear that such transnational criminality can only be addressed at the international level. In any case, the answer lies perhaps in a better SIS or a better use of the SIS by Member States. The answer is certainly not less Schengen.
b. The crossing of external borders
The attacks in Paris have brought a significant amount of attention to the issue of border controls, in particular since it has been confirmed that at least one of the terrorists, holding a Syrian passport, entered the EU through Greece via a route used by refugees. It is also suggested that the Paris attackers, themselves EU citizens, had left the EU to fight in Syria and returned to carry out the attacks in Paris, and that one of them, Salah Abdeslam, could even have managed to flee to Syria after the attacks. This is the phenomenon of so-called “Foreign Fighters”: EU citizens who become radicalised and leave their home in the EU to join the war in Syria before returning to Europe. The European Union’s Counter-Terrorism Coordinator, Gilles de Kerchove, has been warning Member States for many months about the need for strong action to be taken in this area, though his warnings have not been heeded. The main concern here is that such individuals are extremely difficult to detect, including when they enter or leave the Schengen Area by crossing its external borders.
The Schengen Borders Code provides in Article 7(2) that European citizens and other people enjoying the right to free movement in the EU, such as the family members of these groups, who cross the Schengen external border shall only be subject to minimum checks. This concerns the travel documents presented by those persons at the external border, such as an identity card or passport. On the contrary, third-country nationals are subject to thorough checks following Article 7(3) that foresees under point (a)(vi) “the direct consultation of the data and alerts on persons and, where necessary, objects included in the SIS and in national data files”. Such checks are sometimes described as being about persons instead of about documents.
Although Border Guards may consult relevant databases such as the SIS to ensure, among other things, that European citizens crossing the external borders do not represent a serious threat to internal security, a systematic consultation of these databases is not permitted. The EU and its Member States have been struggling with this prohibition of systematic checks of persons for some years now. It is clear that absolutely all EU citizens cannot be checked against databases at one crossing point of the external borders as this would directly contravene this provision. The Commission considers that this does not prevent conducting systematic checks of persons selected on the basis of a risk assessment, for instance some category of persons embarking on flights going to or coming from the vicinity of a conflict zone. The Handbook for Border Guards was modified on 15 June 2015 to include that interpretation.
Nonetheless, Member States in the Council have been calling for the revision of the SBC regarding the systematic consultation of databases for persons enjoying free movement since the beginning of the year, motivated in large part by the Charlie Hebdo attacks in Paris in January 2015. The concerns about the threat of foreign fighters crossing back into the EU undetected are also the basis for a list of Common Risk Indicators (CRI’s), which has been drawn up by the Commission. However, it appears that these confidential CRI’s are too general and too vague in nature, leading to their ineffective implementation by Border Guards. Indeed, a Council document from 5 October from the EU Counter-Terrorism Coordinator explains that “challenges remain in the proper implementation of CRI’s at the external border”. No doubt the ineffectiveness of CRI’s is a contributing factor to the Council’s renewed call for revision of the SBC, as expressed by the Ministers for Justice and Home Affairs on 20 November. Meeting in the wake of the Paris attacks, the Council stated that Member States shall “undertake to implement immediately the necessary systematic and coordinated checks at external borders, including on individuals enjoying the right of free movement”.
One can hardly deny that such checks can be necessary, in particular at the external borders of some areas that foreign fighters are believed to cross more often than others. The current provision of the Schengen Borders Code seems inappropriate by forbidding systematic checks and this explains why the European Commission finally decided on 15 December 2015 to present a proposal to amend Article 7 of the SBC that will, once adopted, not only allow but oblige border guards to verify that an EU citizen is not “considered to be a threat to the internal security, public policy, international relations of any of the Member States or to public health, including by consulting the relevant Union and national databases, in particular the SIS”.
Does this contravene the freedom of movement that EU citizens enjoy on the basis of the EU treaties? The answer seems at first look negative, because freedom of movement concerns a priori movement within the borders of the European Union and not the crossing of its external borders. Nevertheless, Directive 2004/38 implementing freedom of movement also contains provisions recognising the right of EU citizens to enter and to leave the territory of the Member States that could be considered part of the freedom of movement. Article 4 on the right of exit and Article 5 of the right of entry exist “without prejudice to the provisions on travel documents applicable to national border controls”. If this provision, interpreted narrowly, does not explicitly cover the consultation of databases, one should not forget that Article 27 of the same Directive allows Member States to restrict the freedom of movement and residence of Union citizens on the grounds of public policy, public security or public health. There is no doubt that the consultation of databases for security purposes like the SIS falls under the exception of public security. The conclusion is that the Commission proposal is in line with freedom of movement enjoyed by EU citizens.
Even if one may consider that a proposal to modify Article 7 of the SBC could have been presented earlier by the Commission without wasting time to discuss its possible interpretation with Member States, the Schengen acquis will be clarified to allow the systematic control of the movement of foreign fighters at the external borders of the EU. The sooner the better, so that the Council of Ministers and the European Parliament must now prove that when necessary, they can amend existing EU rules in a period of time comparable to that within which Member States with a Parliament made of two chambers can operate.
2. The effectiveness of police and judicial cooperation in criminal matters after the attacks
The Paris attacks and their subsequent developments, such as the flight of the suspected terrorist, Salah Abdeslam, to Belgium by car, trigger the application of mechanisms of police and judicial cooperation in criminal matters. These mechanisms have been extensively developed since the mid-1990’s, and particularly after the entry into force of the Amsterdam Treaty. Today a vast array of instruments, actors and databases are at the disposal of national authorities in charge of investigating and prosecuting terrorism. The anti-EU discourse that followed the attacks, which so often focusses on inaction during grave events, should have been balanced by an analysis of what happened in reality.
In the field of police cooperation, the importance of Europol should be underlined, both in terms of exchange and analysis of information and in terms of support for operational actions. The adoption of the compromise text on the Commission’s original proposal for a Europol Regulation, which was approved by the Council on 4 December 2015, should contribute to the improvement of cross-border police cooperation, as it should increase the agency’s capacity to act as “a hub for information exchange between the law enforcement authorities of the Member States”. One “Focal Point Travellers” has especially been set up in 2014, in which “foreign fighters” are recorded, even though it is for the Member States to make the focal point a reality by providing the content. The so-called 2008 “Prüm Decision” should be mentioned here as well. It aims particularly at mandating the exchange of DNA, fingerprint and vehicle registration data (VRD) amongst the Member States.
In terms of judicial cooperation in criminal matters, Christiane Taubira, French Minister for Justice, insisted after the JHA Council of 20 November 2015, that we do have instruments to address this type of crime and they have worked well for the cooperation with the Member States affected by the investigations.
On the morning following the attacks, requests for mutual assistance in judicial matters were issued and sent to Belgium and Germany. They were addressed very quickly on the basis of the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.
Among the other instruments specific to the EU legal order which have been used in this context, the Framework Decision 2002/584/JHA on the European Arrest Warrant (EAW) is to be mentioned. Adopted in the aftermath of 9/11, the EAW, which is considered the “success story” of the EU area for criminal justice, organises faster and simplified surrender procedures, directly conducted by judicial authorities, without political involvement and with a limited number of grounds for refusal. One or more EAWs have been issued since the Paris attacks against suspects, which implies that competent law enforcement authorities located on the EU territory have the duty to arrest them. On the request of the issuing judicial authority, the issuance of an EAW can be coupled with its transmission via an alert in the Schengen Information System and/or in the Interpol database.
The European Criminal Records Information System (ECRIS), based on a 2009 Council Decision, which is to be read with the Framework Decision on the organisation and the content of the exchange of information extracted from the criminal record between Member States, has also been mobilised and proved its added value for the collection of information on the past convictions of the terrorist suspects. Operational since 2012, this system couples the principle of centralising convictions in the criminal records of the Member State of nationality with an interconnection of the criminal records of the Member States, enabling electronic exchange of standardised information.
Finally, joint investigation teams (JITs), belonging both to police cooperation and judicial cooperation, have a clear added-value. A JIT has been set up between France and Belgium, for which the Ministries of Justice of each country gave their agreement on 16 November. The setting up of a JIT allows the constitution of a team consisting of judges, prosecutors and law enforcement authorities, established for a fixed period and a specific purpose, to carry out criminal investigations in one or more of the involved States. One of the advantages of such JITs is the exchange of information and evidence obtained, without having to go through requests for mutual legal assistance.
Despite these positive elements, cooperation between authorities of the EU Member States can still be improved:
- Firstly, some of the abovementioned instruments, such as the 2008 Prüm Decision or the JITs Framework Decision, have not or have not correctly been transposed by Member States. The importance of correct implementation at the national level has been frequently underlined, for instance by the European Council Strategic Guidelines of June 2014 and by the conclusions of the JHA Council of 20 November. In this respect the end of the transitional period on the 1st December 2014 should push the recalcitrant Member States to conform with EU law as they may be subject to enforcement proceedings for non implementation of acts adopted before the entry into force of the Lisbon Treaty.
- Secondly, some difficulties are also being witnessed at the level of implementation in practice. There is, for instance, a considerable shortfall between, on the one hand, the information available at national level and, on the other hand, the information transmitted to and shared with the competent authorities of other Member States. Besides, the information transmitted to Europol is not always sufficient, hampering the completion of its mandate. In this context, on 20 November 2015, the JHA Council announced the establishment of the European Counter-Terrorism Centre (ECTC) on 1 January 2016, which is envisaged as a platform by which Member States can increase information sharing and operational cooperation with regard to the monitoring and investigation of foreign terrorist fighters, the trafficking of illegal firearms and terrorist financing. A similar centre, the EC3, was set up a few years ago in the field of cybercrime, and it has proven to be a useful tool. The utility of the ECTC will largely depend upon the willingness of Member States to share their information, which has been insufficient to date, as shown by the example of the “Focal Point Travellers” of Europol about foreign fighters following a discussion paper of the EU Counter-Terrorism Coordinator.
- Thirdly, some of the abovementioned instruments suffer from certain limits. ECRIS works efficiently only with regard to EU citizens. Concerning third country nationals, it is still necessary to consult all Member States’ criminal records to know about their past convictions. For years, the possibility of establishing a European index for convicted third country nationals has been discussed. In its conclusions of 20 November, the JHA Council welcomed the intention of the Commission to submit an ambitious proposal for the extension of ECRIS to cover third country nationals by January 2016.
- Finally, further new legislative measures should be proposed shortly, for instance in the field of the approximation of substantive criminal law, particularly the criminalisation of terrorist offences. Indeed, according to the Council conclusions of 20 November, the Commission should present a proposal for a directive updating the 2002 and 2008 Framework Decisions on Combating Terrorism . This revision will implement in EU law the UNSC Resolution 2178 (2014) and the additional Protocol to the Council of Europe Convention on Foreign Terrorist Fighters. This will especially aim to oblige Member States to criminalise offences linked to travelling abroad for the purpose of terrorism.
In conclusion, the recent tragic terrorist attacks have shown that national police and judicial authorities are aware of the tools at their disposal in the field of police cooperation and judicial cooperation in criminal matters. They do not hesitate to rely on them. However there is still room for improvement. The transnational elements of the recent attacks clearly illustrate the need for cross-border cooperation in the criminal field. Member States should realise that the solution encompasses more cooperation and that reflexes of national sovereignty are vain and detrimental to the identification and prosecution of terrorist suspects. In such a move forward, the EU must ensure the right balance between the different interests at stake and not sacrifice fundamental rights at the altar of security as underlined by Stefan Braum in a recent paper published on the blog of the GDR/ELSJ.
3. The failure of intergovernmental cooperation in the field of intelligence
In the days following the attacks, criticisms were voiced against the deficiencies in the cooperation between national intelligence services. It was for instance reported that the Belgian services had information about the danger represented by the Abdeslam brothers, but never shared this information with their French colleagues.
It is important to make a preliminary remark distinguishing cooperation in the field of police information on the one hand and intelligence in the sense of renseignements in French on the other hand.
Whereas police information sharing is subject to EU legislation, adopted under the EU competences in police cooperation in criminal matters, as described above, intelligence sharing does not fall within the EU competences, and the EU is prevented from taking any action in this regard. In the current legal framework, in force since the adoption of the Treaty of Lisbon, no less than three provisions insist on the lack of competence for the EU in matters of national security. Article 4(2) TEU provides that the EU shall respect the essential State functions of its Member States, including safeguarding national security. In Articles 72 and 73 TFEU, it is stated that the Title of the Area of Freedom, Security and Justice shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the safeguarding of internal security, and it is open to the Member States to organise between themselves and upon their responsibility such form of cooperation and coordination as they deem appropriate between the competent departments of their administration responsible for safeguarding national security. In other words, cooperation between national intelligence services in charge of safeguarding national security is left in the hands of the Member States, and is thus conducted on an intergovernmental basis.
As a consequence, blaming the EU for the lack of intelligence sharing between France and Belgium is an unjustified criticism. The idea of creating a European Intelligence Agency has been mentioned by some observers but was promptly rejected on Friday 20 November by the JHA Council, as it appears to be outside of the scope of EU competences in the current state of the EU treaties. Moving forward in this field in the institutional framework of the EU would clearly imply a revision of the treaties. The feasibility of such revision is of course questionable because of its extremely high sensitivity in terms of national sovereignty. It shall indeed not be forgotten that intelligence is, by definition, extremely sensitive data, which national authorities may be reluctant to share, for instance in order to safeguard the safety of their informants. Furthermore, even cooperation within each Member State is sometimes problematic, as intelligence service might be reluctant to cooperate extensively with law enforcement, judicial or other authorities.
The absence of EU competences does not imply that there is a complete absence of European multilateralisation of cooperation in the field of the intelligence. In this regard, the EU Intelligence and Situation Centre (EU INTCEN) is to be mentioned. However, this centre has a limited mandate, which is to provide intelligence analysis, early warning and situational awareness to the High Representative and to the EEAS, in the fields of security, defence and counter-terrorism. This agency is the successor of the EU Situation Centre (SITCEN), created to answer the need of timely and accurate intelligence analysis to support EU policymaking. Despite its title, this agency is not a European Intelligence Agency. It has no operational powers, nor powers in the field of cooperation between national intelligence services. Its core mandate consists of publishing intelligence assessments, reports and summaries, as well as threat assessments for EU personnel, on the basis of open sources and analytical reports transferred from national intelligence authorities. Another initiative to mention is the so-called ‘Club de Berne’, which is an intelligence-sharing forum between the intelligence services of the EU Member States, Norway and Switzerland, within which a counter-terrorism group was established in 2001. It works outside the EU institutional framework but entertains some relations with it, especially via the participation of the INTCEN.
In conclusion, the shock generated by the Paris attacks should push the EU and its Members to engage in a much deeper reflection than their many working meetings have provoked. They must reflect firstly on the criminal motivations which led EU citizens, both French and Belgian, to commit such abominations. To stubbornly insist to the public that these criminals were not the product of our own societies is a grave error which prevents us from considering the causes and therefore inhibits us from conceiving of the appropriate response. They must further reflect on the multiple failures and responsibilities relating to the events in Paris. Rather than exploiting them to justify criticism of the EU, it should be realised that a more integrated and coordinated area of freedom and security is the only possible solution.
This is true on two conditions. The first condition is that there must be real responsibility in its administration, which is far from the case in current border management and intelligence sharing. The second condition is that, above all, there must be an agreement on the values which make up this area, in both the central role of the judicial institution and its fundamental guarantees.