25 November 2020
The first measures to counter terrorism were adopted in the 1960s and 1970s to deal with the first attacks that Europe suffered during that period, which led the first nine countries of the former European Economic Community (ECC) to become aware of their individual vulnerability to the new risks. However, it was the terrorist attacks of the 11th of September 2001 which triggered a collective reaction that led to the approval in a few days of the measures that had been blocked for years. This incident prompted the creation of a new legal framework to strengthen international cooperation in criminal matters within the European Union (EU). As a consequence, on the 13th of June 2002, the Council of the European Union adopted the decision on the European Arrest Warrants (EAW) and the surrender procedures between the Member States which entered into force in 2004.
However, Member States of the EU failed in their own way by implementing national rules too slowly. Despite the fact that the EAW had to be implemented by the 31st of December 2003, by then only eight countries (Belgium, Denmark, Ireland, Finland, Spain, Sweden, Portugal and the UK) complied with its obligations. In this context, the EAW was created at a time marked by:
- Insecurity. Cities were under threat after 9/11 and the situation seemed to make different countries unstable. Besides, the terrorist attacks in Madrid (2004) and London (2005) strengthened the resolve to combat this threat with military and civilian means under the European Security and Defence Policy (ESDP); and
- The resurgence of terrorist groups (Al-Qaeda).
It is important to highlight that the EAW was constituted as the first EU legal instrument dealing with cooperation in criminal matters, especially to tackle terrorism, based on the principle of mutual recognition. It also sped up and simplified surrender procedures between the Member States and put an end to political interference in extradition procedures by introducing a fully judicial procedure.
Moreover, EU Member States can no longer refuse to surrender their own nationals to another EU country if they have committed or are suspected of having committed a serious crime in another EU Member State. As an outcome of this, personalities such as Věra Jourová, Vice President of the European Commission for Values and Transparency, have stood out defending this legal concept and stated that “[the] European Arrest Warrant is a success. It protects citizens by ensuring that criminals are brought to justice across borders”.
As contained in article 2 of the Decision of the European Council, 32 crimes offences stand within this rule. However, this legal concept has been especially useful in the fight against terrorism. As so, some of the most important and recent cases relating the issuance of an EAW, terrorism and the need for involvement of the security and armed forces have been: (i) the case against Fritz-Joly Joachin arrested by Bulgaria for attempting to travel to Syria; (ii) Mehdi Nemmouche arrested by France, responsible for the May 2014 Brussels massacre; (iii) Salah Abdeslam arrested by Belgium, one of the perpetrators of the 13 November 2015 attacks in France; and (iv) David Pla arrested in France, ex-chief of ETA.
The procedure adopted to capture these specific individuals is based on the first tracking made by the cooperation between national authorities of the country which issues the EAW and the one who receives it. Sometimes, and depending on the dangerousness of the situation, land forces will have to decide to take action or not. In other words, the relationship between the EAW and armed forces depends on the level of intensity at which action is needed. It means that the existence of continuous arrest warrants within the European Union indirectly implies the inevitable action of the army if a larger force is required. In Salah Abdeslam’s case, for example, after the police intervened to capture the individual, he had to be “seized by the military, helmeted and over-armed”.
Although the European Decision does not explicitly contain military intervention, its use by the different Member States is not prohibited. For example, the French provision considers in the first place that the principle of solidarity applies to all Member States in the event of a terrorist attack against one of them. As so, it says: “this solidarity is reflected in the mobilisation of all the instruments at the Union’s disposal, including military means, to prevent the terrorist threat on the territory of the Member States”. Taking legal measures within the EU to be enforced by the Member States simultaneously has been precisely the purpose of the European Arrest Warrant since its creation more than fifteen years ago.
Written by Candela FERNÁNDEZ GIL-DELGADO, Legal Researcher at Finabel – European Army Interoperability Centre
Sources: France Info “18 mars 2016 : la dernière course” https://www.francetvinfo.fr/faits-divers/terrorisme/attaques-du-13-novembre-a-paris/enquete-sur-les-attentats-de-paris/recit-de-la-fusillade-de-forest-a-sa-capture-a-molenbeek-les-quatre-jours-qui-ont-mis-fin-a-la-cavale-de-salah-abdeslam_2570195.html
Félix Artega Martín, “Medidas antiterroristas de la Uníon European antes y después del 11-M”
Council Framework of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)
Apport d’information par la délégation de l’Assemblée Nationale pour l’Union Européenne sur l’Union européenne et la lutte contre le terrorisme.