Doc. 9672

25 January 2002

Air transport and terrorism: how to enhance security?

Recommendation 1549 (2002)

Combating terrorism and respect for human rights

Recommendation 1550 (2002)

Reply from the Committee of Ministers

adopted at the 825th meeting of the Ministers’ Deputies (22 January 2003)

1.        The Committee of Ministers has examined with close attention Parliamentary Assembly Recommendation 1549 (2002) on Air transport and terrorism: how to enhance security? and 1550 (2002) on Combating terrorism and respect for human rights. The Committee decided to communicate these texts which deal with a question of high priority for the Organisation and for the international community as a whole, to governments.

2.       As the Assembly is aware, the Committee of Ministers has discussed, at Ministerial level, with the participation of the President of the Parliamentary Assembly, international action against terrorism (110th Session in Vilnius on 3 May 2002 and 111th Session in Strasbourg on 7 November 2002).

3.       Where Recommendation 1549 on Air transport and terrorism: how to enhance security? is concerned, the Committee of Ministers decided to bring it to the attention of IATA (International Air Transport Association), ECAC (European Civil Aviation Conference) and ICAO (International Civil Aviation Organisation). It also instructed the Multidisciplinary Group on International Action against Terrorism (GMT) to take account of it.

4.       The Parliamentary Assembly has already been invited to give its opinion on the text of the draft Protocol amending the European Convention for the Suppression of Terrorism resulting from the work of the GMT. Where security of air transport is concerned, it should be recalled that the Convention as originally drafted listed among the offences which should not be regarded as “political” those within the scope of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft and the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. The draft Protocol amending the European Convention for the Suppression of Terrorism enlarges that list to include inter alia offences within the scope of other relevant international instruments concluded after the European Convention on the Suppression of Terrorism was adopted, namely the 1979 International Convention Against the Taking of Hostages and the 1988 Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation.

5.       Where Recommendation 1550 on Combating terrorism and respect for human rights is concerned, the Committee of Ministers assigned ad hoc terms of reference to the Steering Committee for Human Rights (CDDH) and to the Multidisciplinary Group on International Action against Terrorism (GMT). (the text of the two opinions are appended to this reply, see Appendices I and II).

6.       Where fighting terrorism while ensuring respect for human rights in general is concerned, the Ministers, at the 110th Ministerial Session (Vilnius, 3 May 2002), referring to the guidelines then under preparation by the Steering Committee for Human Rights (CDDH), and subsequently adopted by the Committee of Ministers on 11 July 2002, expressed themselves as follows:

“The general principle that underlies these guidelines is that respect for human rights is not an obstacle to the fight against terrorism. The obligation for states to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, in particular the right to life, requires them to take efficient measures to fight against terrorism. These measures must however be reasonable and proportionate, and require striking a balance between the obligation to take protective measures against terrorism and the obligation to protect and defend human rights and fundamental freedoms.”

7.       Subsequently, at the 111th Ministerial Session (Strasbourg, 7 November 2002), the Ministers “stressed the importance of the “Guidelines on human rights and the fight against terrorism” adopted in July, which were the first legal international document of this type designed to help states in finding the right balance between the requirements of efficiently protecting society and the preservation of fundamental rights and freedoms.”

8.       With regards to the more specific recommendation concerning refusal to extradite in the absence of guarantees that the death penalty will not be sought for the accused person (paragraphs 2 and 7 i. of the recommendation), No. XIII of the above-mentioned guidelines states that “the extradition of a person to a country where he/she risks being sentenced to the death penalty may not be granted. A requested state may however grant an extradition if it has obtained adequate guarantees that: (i) the person whose extradition has been requested will not be sentenced to death; or (ii) in the event of such a sentence being imposed, it will not be carried out”.

9.       Moreover, in the draft Protocol amending the European convention on the Suppression of Terrorism, whose contents were already endorsed by the Committee of Ministers at the 111th Session, the addition of a new paragraph to Article 5 is proposed, worded as follows:

“ Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person subject of the extradition request risks being exposed to the death penalty or, where the law of the requested state does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested state is under the obligation to extradite if the requesting state gives such assurance as the requested state considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.”

10.       Where international cooperation in efforts to combat the laundering of proceeds from crime and the financing of terrorism is concerned (paragraphs 7 ii. of the Recommendation), the Committee of Ministers, at its 111th Ministerial Session “noted with satisfaction the priority areas for Council of Europe action identified by the GMT”.

11.       These priorities include:

- Strengthening further the work of the Select Committee of Experts on the evaluation of anti-money laundering measures (MONEYVAL) in order to enable it to give high priority in particular to the evaluation of the measures taken by states to comply with the Special FATF recommendation on the financing of terrorism;

- Considering further these issues in the framework of the discussions on the possible updating of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS N° 141), and

- Calling on states which have not yet done so to sign, ratify and implement the 1999 International Convention for the Suppression of the financing of terrorism.

12.       With regards to the request that the GMT consider using the definition of terrorism adopted by the European Union (paragraphs 7 iii. and appendix of the recommendation), the Committee of Ministers notes and supports the decision of the GMT, after careful consideration (see the appended opinion) not to use the definition used in the EU Council Common Position of 7 December 2001 on the application of specific measures to combat terrorism agreed for the purposes of the European Union. The Committee of Ministers agrees with the reasons given in the above-mentioned opinion, namely that “this definition and the legal nature of the act which contains it, are very specific to the EU and not adaptable to another international framework such as that of the Council of Europe”. The GMT has also taken account of this fact in the draft Protocol amending the Council of Europe’s Convention, which has been forwarded to the Parliamentary Assembly for its opinion.

13.       In this connection, it is recalled that the Committee of Ministers, at the 111th Ministerial Session (Strasbourg, 7 November 2002) approved the content of the Draft Protocol amending the Convention and instructed their Deputies to proceed to the adoption of that instrument, in the light of an opinion by the Parliamentary Assembly, as soon as possible in 2003. This matter is on the agenda of the Ministers’ Deputies at their 828th meeting (13 February 2003)

14.       The Committee of Ministers looks forward to continuing its dialogue with the Parliamentary Assembly in this matter of high priority to the Organisation, as a whole.

Appendix I

Opinion of the Bureau of the CDDH

on Recommendation 1550 (2002) of the Parliamentary Assembly

“Combating terrorism and respect for human rights”

(Adopted at the 59th meeting of the Bureau, Paris, 30-31 May 2002)

Preliminary note:

At their 782nd meeting (6 February 2002, item 3.1) the Ministers’ Deputies gave ad hoc terms of reference to the CDDH to prepare, by 31 May 2002, an opinion on Parliamentary Assembly Recommendation 1550 (2002) on combating terrorism and respect for human rights. The present opinion was therefore adopted by the Bureau of the CDDH, at its 59th meeting (Paris, 30-31 May 2002) as proposed by the Group of Specialists on human rights and the fight against terrorism (DH-S-TER).

* * *

1.       The Bureau of the Steering Committee for Human Rights (CDDH) notes with interest Recommendation 1550 (2002) of the Parliamentary Assembly “Combating terrorism and respect for human rights”, which is the subject of the present opinion. It also notes Resolution 1271 (2002) of the Parliamentary Assembly on the same issue.

2.       The Bureau of the CDDH firstly recalls that, in order to follow up a decision taken by the Ministers’ Deputies at their 765 bis meeting (21 September 2001, item 2.1), the CDDH set up a Group of Specialists on Human Rights and the fight against terrorism (DH-S-TER) and instructed it to draw up guidelines based on principles of human rights protection, that should guide the efforts of the member states in the fight against terrorism, with due respect for democracy and the rule of law. These guidelines are currently being finalised and will be adopted by the CDDH at its 53rd meeting (25-28 June 2002) and then transmitted to the Committee of Ministers.

3.       Generally, the Bureau of the CDDH recalls that all acts, methods and practices of terrorism are unjustifiable and that states have the imperative duty to protect their populations against such acts. It also recalls that it is not only possible, but also absolutely necessary, to fight against terrorism in the respect of human rights, of the rule of law and, where applicable, of international humanitarian law. For more precise considerations on this issue, the Bureau of the CDDH invites the Parliamentary Assembly to refer to the text of the guidelines which will be adopted by the CDDH in June 2002.

4.       In particular, in response to the concern of the Parliamentary Assembly on this matter (§ 7 of the Recommendation), it indicates that the guidelines, such as elaborated by the DH-S-TER, state that “the extradition of a person to a country where he/she risks being sentenced to the death penalty shall not be granted, unless the state that has received the request for extradition has obtained a guarantee that (i) the person whose extradition has been requested will not be sentenced to death; (ii) in the event of such a sentence, it will not be carried out” (guideline n° XIII).

Appendix II

OPINION OF THE MULTIDISCIPLINARY GROUP ON INTERNATIONAL ACTION AGAINST TERRORISM (GMT) CONCERNING PARLIAMENTARY ASSEMBLY RECOMMENDATION 1550 (2002) ON COMBATING TERRORISM AND RESPECT FOR HUMAN RIGHTS

(Adopted at the meeting held in Strasbourg, 11-13 December 2002)

1.       The GMT welcomes the thrust of Parliamentary Assembly Recommendation 1550 (2002) on Combating terrorism and respect for human rights which has been duly taken into account by the GMT in discharging its tasks of updating Council of Europe instruments in the fight against terrorism – in particular the European Convention on the Suppression of Terrorism- and identifying new and better ways in which the Council of Europe could contribute within the limits of its scope to the international fight against terrorism.

2.       The GMT shares the concern of the Parliamentary Assembly that the fight against terrorism should not prejudice respect for human rights. It stresses the importance of the priority areas for action by the Council of Europe identified by the Parliamentary Assembly including the fight against the financing of terrorism and the need to strengthen international co-operation.

3.       The Parliamentary Assembly recommended to the Committee of Ministers, inter alia, that

4.       The GMT considered recommendations i. and iii. in the context of the preparation of a Protocol amending the European Convention on the Suppression of Terrorism (the Convention) (cf. document CM(2002)149rev.) and recommendation ii. in the context of the preparation of a report for the Committee of Ministers on the actions that the Council of Europe could usefully carry out in order to contribute to the international fight against terrorism (documents CM(2002)57 & 148). The resulting documents were examined and endorsed by the Committee of Ministers at its 111th ministerial session on 6-7 November 2002.

5.       The GMT considered in particular recommendation i. in relation to Article 5 of the Convention which states grounds for refusal of extradition. In this connection, the GMT drew its inspiration from the Recommendation of the Parliamentary Assembly as well as the Guidelines on Human Rights and the Fight against Terrorism adopted by the Committee of Ministers on 11 July 2002.

6.       As a result, the GMT proposed changes to this article which once amended by the Protocol should read (additions in relation to the original formulation in bold):

7.       The GMT considered in particular recommendation iii. in relation to Article 1 of the Convention which lists the offences which could not be considered as political offences for the purposes of refusing extradition and constitutes a key provision of the Convention.

8.       The GMT agreed on the need to update and therefore enlarge the list of such offences. However, after careful consideration, the GMT decided not to use the definition contained in the EU text, for a number of reasons.

9.       The EU definition contained in Council Common Position of 7 December 2001 on the application of specific measures to combat terrorism has been agreed for the purposes of the EU as this is clearly reflected in the text itself.

10.       Moreover, it should be noted that the EU definition has been subsequently used for the purpose of the approximation of the laws of the member states of the EU in the Framework Decision of the Council of 13 June 2002 (2002/475/JAI, JO L 164 of 22.6.2002, p. 3).

11.       This definition and the legal nature of the act which contains it, are very specific to the EU and not adaptable to another international frameworks such as that of the Council of Europe.

12.       Indeed, the legislative process inside the EU is a specific one and will imply in the near future the review by the Court of Justice of the European Communities of the implementation by the member states of the framework decisions, particularly with regard to the EU Charter of Fundamental Rights. This of course makes it very difficult to extend the application of an EU definition to non-EU member states, which are members of the Council of Europe.

13.       The Council of Europe Convention on the Suppression of terrorism is an instrument of depolitisation for the purpose of extradition and not an “incriminating” Convention requiring Contracting states to criminalise certain behaviour.

14.       When the GMT considered the possible updating of the Convention by means of an amending protocol, it agreed from the outset to preserve the nature of the Convention. Therefore, it did not consider it possible to make use of the EU definition which would necessary entail a change in that very nature.

15.       The GMT attaches the utmost importance to negotiations underway in the United Nations for the drafting of international instruments against terrorism and call upon all member states to contribute to their success in as far as possible.

16.       One of the reasons which moved the GMT to preserve the nature of the Convention was the fact that the drafting of an incriminating convention in the Council of Europe context would overlap with work underway in the United Nations.

17.       It is however not excluded that, at the request of the member states, the Council of Europe could undertake to elaborate a new regional convention against terrorism which could, where appropriate, define terrorist offences and require states to criminalise certain behaviour.

18.       Recommendation ii. has been followed and its content is appropriately reflected in the “Progress Report on the action which the Council of Europe could usefully carry out in the field of the fight against terrorism” document CM(2002)57 prepared by the GMT and submitted at the 110th Session of the Committee of Ministers (Vilnius, 3 May 2002) which identifies the “fight against the financing of terrorism” as one of the priority areas for Council of Europe action (see paragraphs 31-42 of the Progress Report). This priority has been stressed in the second report submitted by the GMT to the Committee of Ministers on the Follow-up to the 110th ministerial session (document CM(2002)148) which lists it amongst the six GMT proposals to be developed without delay by the Council of Europe.

19.       The GMT further proposed ways and means to develop this priority action and the relevant Council of Europe bodies (respectively paragraphs 14 and 20-22 of document CM(2002)148) by:

a.       Strengthening further the work of the Select Committee of Experts on the evaluation of anti-money laundering measures (MONEYVAL) in order to enable it to give high priority in particular to the evaluation of the measures taken by states to comply with the Special FATF Recommendation on the financing of terrorism,

b.       Consider[ing] further these issues in the framework of the discussions on the possible updating of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS N° 141)

c.       Call[ing] on states which have not yet done so to sign, ratify and implement the 1999 International Convention for the Suppression of the financing of terrorism.