25 September 2001
Democracies facing terrorism1
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Gunnar Jansson, Finland, Liberal, Democratic and Reformers' Group
The Committee on Legal Affairs and Human Rights supports the draft Resolution and draft Recommendation tabled by the Political Affairs Committee. However, it would like to table some amendments aimed mainly at reinforcing the legal measures.
II. Proposed amendments
In the draft resolution, in paragraph 2, replace "American people" by "people of the United States".
In the draft resolution, in paragraph 5, replace "an appropriate institution" by "the appropriate institution".
In the draft resolution, after paragraph 17.vi, add a new sub-paragraph worded as follows:
“to provide access to bank accounts for the authorities responsible for investigating international crime and terrorist networks in particular”.
In the draft resolution, in paragraph 11, replace the words "to whom violence has been used" by "who have used violence".
In the draft resolution, in the second sentence of paragraph 14, after "(CIS)", add the words "and the OSCE".
In the draft resolution, in the second sentence of paragraph 16, after the word "recommendation", add the words "including the principle aut dedere aut judicare (either extradite or try)".
At the end of the draft resolution, add a new paragraph worded as follows:
"The Assembly invites the member States of the United Nations to amend the Charter so that it may also address crises other than those arising between States."
At the end of the draft resolution, add the following new paragraph:
“Decides to transmit the present resolution to the Congress and to the President of the United States and to the Secretary General of the United Nations”.
In the draft recommendation, in paragraph 4, replace "an appropriate institution" by "the appropriate institution".
In the draft recommendation, in paragraph 5.v., after "European Union", add "and the OSCE".
In the draft recommendation, after paragraph 5.vi, add the following sub-paragraph:
“extend the terms of reference of the Committee of Experts on the criminalisation of acts of a racist or xenophobic nature committed through computer networks (PC-RX) to terrorist messages and the decoding thereof.”
In the draft recommendation, at the end of paragraph 5, add the following new sub-paragraph:
“pending the creation of the International Criminal Court with appropriate powers, propose to set up an international criminal tribunal to judge terrorists”.
In the draft recommendation, after paragraph 5, add the following new paragraph:
“It recommends that the Committee of Ministers examine, in co-operation with the European Union bodies, the modalities for extending the European arrest warrant to all Council of Europe Member States in the field of the fight against terrorism.”
III. Explanatory memorandum
by Mr Jansson, Rapporteur
1. Almost exactly two years ago the Parliamentary Assembly held a debate on the subject with which we are dealing today, except that at the time it was restricted to the European democracies. However, this debate did in fact concern just the problem we are tackling today, namely democracy (in the singular) facing terrorism. The Assembly debate carefully avoided any mention of fighting terrorism, thus shunning warlike language in order to show that it was more concerned to analyse the causes of this phenomenon and find ways of preventing it.
2. The question is whether the number of victims killed and injured and the symbols targeted in the attacks committed on 11 September 2001 in the United States of America have altered the nature of the phenomenon.
3. There is great emotion, and great compassion for the victims, around the globe. However, we should not overlook the isolated expressions of joy that emerged. They were an indication of all the suffering and frustrations which no doubt partially fuelled the 11 September attacks.
4. While we can in no way justify barbaric acts, we must attempt to identify their causes in order to find remedies.
5. This is what the Assembly did in 1998. In October 1998 it prepared the way for the debate held two years ago by organising a conference, as suggested by its Rapporteur, Mr Lopez-Henares. It spent three days analysing all the different aspects of the terrorist phenomenon with the help of academic, political, judicial, police and media specialists. The main conclusion of this conference was that terrorism is above all the enemy of democracy, and that while it is utterly unjustifiable, democracies should on no account abandon their fundamental principles, namely compliance with the law, the law-based state and human rights, in seeking to protect themselves. If the democracies depart from these principles they will be doing what the terrorists expect. Democracies must use reason to counter the irrationality driving the people behind these acts, their organisers and perpetrators. Democracy must keep a cool head.
6. Recommendation 1426 (1999) adopted by the Assembly in the wake of the Conference embodied all the desired rationality. Setting civilisations against each other, talking of a clash of civilisations, reducing the world to a Manichean opposition between good, represented by the west, and evil, represented by the rest of the world, and demonising Islam, can only lead to deadlock.
7. How are we to react? This is the question facing us today. Other organisations have already adopted positions, although they have left many questions unanswered.
8. For instance, Resolution 1368 adopted on 12 September 2001 by the United Nations Security Council “recognises the right to individual or collective self-defence”. What does this mean? Does it authorise a declaration of war? By whom? By all Member States? Against whom? This shows that the Charter of the United Nations is perhaps no longer adapted to new situations. It would thus be advisable to amend the Charter so that it can also address crises other than those arising between States.
9. As Rapporteur for the Committee on Legal Affairs and Human Rights I can subscribe to the draft Resolution and draft Recommendation tabled by the Rapporteur for the Political Affairs Committee. I think he found the appropriate moderate tone, and the stress he laid on using the resources available to the Council of Europe has my wholehearted backing.
10. As Chairperson of the Committee that tabled the report on the International Criminal Court (and by the way I deplore the fact that this body needs a further 60 ratifications before it can be set up) I would like to propose setting up an international criminal tribunal to try terrorists.
11. However, the terrorists must be arrested before they can be brought to court, and extradition procedure is slow. This is what drove the European Union to introduce a number of measures to facilitate the prosecution of terrorists, notably by deciding to create a European arrest warrant. Such an arrest warrant would obviously seem fairly practicable in the Schengen Area, but it ought to be extended to cover the whole European environment of the Council of Europe.
12. Furthermore, no State should be able to refuse to co-operate with the judges responsible for investigating terrorists on the grounds of banking secrecy, as sometimes happens, thus making their work impossible or at least extremely slow and arduous.
13. Lastly, given that terrorists use such technological resources as Internet to transmit terrorist or encoded messages, the committee of experts working on crime in cyberspace should also be mandated to investigate these specific forms of criminality.
14. I also consider it important to notify the American Congress and the President of the United States of the texts to be adopted by the Assembly. I would therefore propose mentioning that fact in the Resolution.
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Request for urgent debate, Reference No 2629 of 24 September 2001
Opinion approved by the committee on 25 September 2001
Secretaries to the committee: Mr Plate, Ms Coin, Ms Kleinsorge and Mr Ćupina
1 See Doc 9228 tabled by the Political Affairs Committee.