ABSTRACT
Conceptual Thinking on Counter-Terrorism Convergence EU counter-terrorism can be perceived as a form of multi-level governance in which the EU is one player amidst several others. Several measures have been introduced which had been adopted in other multilateral frameworks of
cooperation, such as the Council of Europe1 or the United Nations. 2 As a security actor, the EU cannot impose changes in national anti-terrorism systems, except through the joint adoption of binding legal instruments (see legal convergence below). In terms of governance, the EU can only take recourse to coordination powers, principally through the EU CounterTerrorism Coordinator. Hence, potential convergence between national counter-terrorism systems may result from intergovernmental initiatives rather than from top-down steering through supranational governance. Gradually, however, the weight is shifting as a result of the Treaty of Lisbon, which gives the European Commission, the European Parliament and the European Court of Justice more powers in the area of criminal justice cooperation and counter-terrorism than ever before. Also in the field of Common Foreign and Security Policy, the limited powers of the European Court of Justice have been slightly expanded in the interest of ensuring the better protection of the rights of individuals, particularly with respect to reviewing the legality of decisions providing for restrictive measures against natural or legal persons.3 Resulting from increased cooperation and the fact that cooperation in areas
of ‘high politics’ is possible,4 strong convergence of counter-terrorist policies within the EU canbe expected. Especially in the framework of theEU,manyof the causal mechanisms and facilitating factors proposed in convergence research are fulfilled. These mechanisms and factors serve ‘to explain changes in similarity of policies across countries’,5 and include, for example, imposition of policies, harmonization through international law, communication and information exchange, but also institutional and cultural similarity. 6 In order to assess whether, how and to what extent the counter-terrorism
efforts in the Member States of the EU are in a process of convergence, we have to take recourse to comparative research between national politicaladministrative systems, legal systems, relevant organizations and working
procedures. Comparative counter-terrorism research of EU Member States has been largely unexplored and ‘comparative analyses of counterterrorism policy developments at the member state level remain sparse’.7 There are few studies comparing counter-terrorist approaches of different EU member states8 and even fewer authors have compared counter-terrorist policies systematically.9 Significant differences were found between the national counter-terrorism approaches in all of these studies. In general terms, it is suggested that ‘the European Union is still a long way from harmonizing counterterrorism policies of its Member States’.10 Wiegand11 collected and analyzed data from six European Union
Areas of Counter-Terrorism Convergence Convergence between the national counter-terrorism systems in the EU Member States can be established in four different layers, namely politicalstrategic, organizational, procedural, and legal convergence. In all four dimensions, actions fostering further convergence of the member states’ policies have been taken. In the various political arenas, counter-terrorism strategies have been adopted which contained a promotion of multidisciplinary, cross-sector or ‘integral security’ approaches to security deficits, which forces police and justice organizations to take account of different organizational perceptions, images and cultures. Several counter-terrorism strategies which have been developed at the national and the European level have adopted similar strategic vocabularies, which may be interpreted as a form of political-strategic convergence. A cross-fertilization and merging process has been taking place since the middle of the 1970s, when the ministers of the interior and justice of the then EC Member States met frequently under the umbrella of TREVI. The events of 9/11 meant a turning point and ushered politicians and policy-makers into action. Ten days after the attacks, the EU convened an Extraordinary Council Meeting,12 where a considerable number of measures were adopted, comprising 175 different instruments in the field of anti-terrorism. Almost a decade later, the EU has not only established an integrated anti-
terrorism strategy,13 but also built in new elements such as crisis and calamity management. Moreover, counter-terrorism measures have become part of multi-annual programmes for the further establishment of the Area of Freedom, Security and Justice. Levers of these programmes include the encouragement of a multi-agency approach in the cooperation against terrorism; it also includes the intermeshing between internal and external security strategies, the cooperation between public and private actors, and a drive for a preventive approach to terrorism and radicalization, building on methods such as intelligence-led policing, the employment of risk assessment methods and the use of electronic surveillance.14 In December 2005, the Justice and Home Affairs Council adopted an EU Strategy against terrorism,
with integrated objectives, which were divided in four sub-dimensions, namely Preparation and Response, Prevention, Protection, and Prosecution. Gradually, increased attention has been devoted to the ‘root causes’ of terrorism and radicalization.15 In the realm of external affairs, the EU engages in several counter-
terrorism efforts ( see Monar infra).16 In the context of the United Nations, the EU has been the driving force behind the Convention against Nuclear Terrorism; efforts continue to promote agreement on a General UN Convention against Terrorism, and the EU co-operated with the UN Teams on Counter-Terrorism fact-finding missions to Algeria, Albania, Kenya and Morocco. The EU also opened up dialogues with the United States, Canada, Russia, India and Pakistan, in which terrorism was addressed. With the USA, several agreements were concluded.17 Other examples of the transatlantic cooperation include the cooperation between experts on terrorism financing, customs cooperation, the stationing of liaison officers at Europol by the USA Secret Service and the FBI, and the signing of an antiterrorism declaration.18 On the organizational dimension, we may observe that mature traditional
bureaucracies like law enforcement and prosecution services are primarily characterized by stability, continuity and predictability, and their long-term existence is secured by means of a relatively fixed structure, composition and mission. At the same time, however, organizations are subject to several impulses, which stimulate change, fluidity, and contingency.19 Hence, at an organizational level, the convergence between national counter-terrorism organizations in Member States may also be characterized by an organic sensitivity to internal and external impulses. As organizations seek to create responses to old problems, new problems arise: ‘Nothing is more permanent than change’.20 Organizations also have a self-learning dynamic that may prompt organizational change. Open-textured and well-networked
organizations perceive their environment as rather diffuse, patchy or fragmented, which generally makes them more flexible and adaptive.21 In the domain of counter-terrorism, we have seen several examples of
changes that have been introduced. In particular, several countries, outside the EU, have enlarged or reshuffled their intelligence organizations, and they have encouraged multi-agency cooperation (public-private, civil-military) and internationalization (participation in international agencies and counterterrorism networks).22 More generally, formal organizations such as police, justice and intelligence organizations are exposed to influences in their immediate environment. Budget changes can have a significant impact, but change can also be triggered by the findings of parliamentary inquiries, auditing reports, the media, statistics or academic analysis. Perceptions of unsatisfactory performance may provide an incentive for organizational reform.23 Law enforcement organizations, public prosecution services and intelligence services may also have to adapt because of new businessadministration models24 and they may have to ameliorate their hitherto exclusive products in the face of increased privatization in the security industry.25 A third form of convergence is procedural convergence, with which we
and informal contacts and engage in comparative learning and ‘crossfertilization’.26 There is a layer of convergence between working processes that is related to the Europe-wide shift towards ‘precautionary security’,27 which leads to the wide-scale introduction of surveillance devices at airports and several other public places, and the use of methods such as pre-travel screening and pre-profiling. Finally, the fast-developing internationalization of regulatory mechanisms
lays down binding and non-binding principles for all national legal systems, and this may contribute to an incremental legal convergence. When, in the aftermath of 9/11, 175 measures were adopted, it was unclear when, whether and how the Member States would be able to actually implement those measures in their domestic legal systems. A decade has now passed and the pattern that has emerged is that the implementation process has been slow, slack and uneven.28 This article focuses on this particular area of convergence to which we will return below in more detail. This appreciation of the different areas of convergence in counter-terrorism
shows that internationalization is to be regarded as a factor leading to a convergence between national systems, and this applies also to the fight against terrorism. Meanwhile, notions such as ‘Europeanization’ and ‘globalization’ may be considered too vague and indeterminate, and these mechanisms ought to be further differentiated and refined.29
