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17. Collecting and Sharing Intelligence on Foreign Fighters in the EU and its Member States: Existing Tools, Limitations and Opportunities

verfasst von : Matteo E. Bonfanti

Erschienen in: Foreign Fighters under International Law and Beyond

Verlag: T.M.C. Asser Press

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Abstract

The present chapter examines the tools that can be employed by the European Union and its Member States to collect and, above all, share intelligence on foreign fighters. It starts by framing the phenomenon as a security threat for the EU and its Member States, and by presenting the role that the European Intelligence Community can play in facing this threat. It then discusses briefly the instruments EU Member State intelligence services and law enforcement agencies can employ to produce actionable knowledge concerning returning nationals or residents at the domestic level, and the possibilities for bilateral or multilateral cooperation with similar agencies and services in other Member States. The chapter continues by examining EU instruments establishing and organising Member State cooperation in intelligence gathering and sharing, as well as the EU Institutions, bodies and agencies that play a significant role and/or have ad hoc responsibilities in this area. The chapter concludes by examining the general limitations of these tools, as well as the opportunities they present, for achieving the goal of producing enhanced intelligence on foreign fighters. To a lesser extent, it addresses the privacy and data protection implications these tools entail.

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Vorheriges Kapitel The Regional Answers and Governance Structure for Dealing with Foreign Fighters: The Case of the EU

Nächstes Kapitel Towards Effective Regional Responses to the Phenomenon of Foreign Fighters: The OSCE Toolbox

JHA Council, Joint statement, Paris, 11.01.2015, para 4, at http://ec.europa.eu/dgs/home-affairs/what-is-new/news/news/docs/20150111_joint_statement_of_ministers_for_interrior_en.pdf.

Nowadays, it is unquestionable that the phenomenon of foreign terrorist fighters and returnees represents a security concern for the International Community. Cf. UN SC Res 2178 (2014), Preamble, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2178%20(2014). This is also true for the EU and its Member States that have tackled the phenomenon from a security and, in particular, counter-terrorist perspective since the beginning of 2013. The attacks in Paris contributed to boosting the discussions concerning the measures that should be urgently adopted or implemented by the EU and its Member States in order to prevent and respond to the threat posed by foreign terrorist fighters. Council of the EU, Report on the implementation of the EU Counter-Terrorism Strategy/EU Counter-Terrorism Coordinator, 15799/14, 2014, p. 6, para 1, at http://data.consilium.europa.eu/doc/document/ST-15799-2014-INIT/en/pdf.

With regard to the prevention of, and response to, the threat posed by FTFs, the JHA Council (June 2014, October 2014) already supported the full employment of existing tools or measures to enhance data sharing between the EU and Member States’ relevant agencies, as well as the adoption of new solutions having the same purpose. Cf. JHA Council, Doc. 10578/14, 5–6 June 2014, p. 11 at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/143119.pdf; Doc. 14044/14, 9–10.10.2014, p 9, at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/145033.pdf. See also Joint Statement following the informal meeting of Justice and Home Affairs Ministers, Riga 29–30.01.2015, at https://eu2015.lv/images/Kalendars/IeM/2015_01_29_jointstatement_JHA.pdf. Of particular relevance, given the topic discussed in this chapter, are those tools and measures that allows or enhances the sharing of ‘intelligence’—not simply ‘information’. No matter whether this intelligence is produced or shared by law enforcement agencies (criminal intelligence) or security services, and whether it is strategic, tactical or operational. See further on in the text.

European Council, Statement, Informal meeting of the Heads of State or Government, Brussels, 12 February 2015, at http://www.consilium.europa.eu/en/press/press-releases/2015/02/150212-european-council-statement-fight-against-terrorism/.

Ibid. Cf. also European Council, Conclusions, 26–27.06.2014, para 10, at http://data.consilium.europa.eu/doc/document/ST-79-2014-INIT/en/pdf; Conclusions, Special meeting 30.08. 2014, para 18, at http://data.consilium.europa.eu/doc/document/ST-163-2014-INIT/en/pdf.

‘[…] we must promote all initiatives aimed at improving cooperation with our partners which are transit states and if possible destination states for FTFs. Our external actions and policies should constantly be in line with our internal actions and policies, and vice versa…’. Joint statement, Paris, para 6. See also European Council, Conclusions, Special meeting 30.08.2014, para 18.

Bonfanti and Rebera 2013, pp. 11–14.

Ibid. The added value of intelligence consists in its being forward-looking. Breakspear 2013, p. 688.

Generally, information is classified as open source (as opposed to covert source) if it is publicly available and not classified at its origin. Cf. NATO 2002.

Hertzberger 2007, p. 39.

The proposed distinction between strategic and operational intelligence should not be considered peremptory. Strategic intelligence can integrate operational intelligence, and the latter can involve a certain degree of strategic assessment. Ibid., p. 40. Also UNODC 2011, p. 9.

UNODC 2011, pp. 6–8.

In general, the production of intelligence in relation to a specific investigation preludes the process of evidence gathering. Legislation determines whether intelligence collected during the course of an investigation may be disclosed in criminal proceedings. Eijkman and van Ginkel 2011, pp. 2–3.

Cross 2013, pp. 390–391. In principle, the higher the ‘operability’ or ‘actionability’ of certain intelligence will be, the lower the probability is that it will be shared. It is the strategic intelligence that is most likely to be shared. The same goes with open source intelligence that is more likely to be shared than intelligence from covert sources.

On top of the sovereignty issue, there are political, legal, cultural, organisational, and technical obstacles that usually hinder effective intelligence cooperation, in particular at the transnational level. Hertzberger 2007, p. 101 et seq.

Ibid., p. 52 et seq.

It is a principle that requires the service that receives the intelligence to abstain from exchanging/sharing it with other third parties without explicit permission of the originator Ibid., p. 62.

Ibid. See also the interview of Austrian Counter-terrorism chief Peter Gridling reported in Rettman 2011.

At the EU level, the intelligence sharing seems to be further hindered by the slightly different mandate and working approach of the LEAs that take part in this kind of cooperation. Cf. also Sect. 17.2. In some cases these are agencies that work with secret intelligence or, to put it differently, that operate with stricter levels of confidentiality and higher compartmentalisation. These agencies are in general less keen on sharing their information or intelligence with other MSs LEAs that carry out ‘traditional policing’ activities, or do not have a ‘culture of secrecy’. This issue can be tackled by adopting ad hoc procedural and organisational solutions, like the provision of a duty of secrecy in the ‘handling code’ that accompanies the shared information or intelligence. However, this seems insufficient to fill the confidence or trust divide.

The author would like to thank officers from the Italian Arma dei Carabinieri and Europol for their comments and suggestions.

The mandate and responsibilities of national intelligence and security services, as well as of LEAs, are regulated by laws and decrees in all EU Member States. Adherence to the law is a crucial aspect in underpinning the legitimacy of intelligence activities.

These issues are discussed by the Fundamental Rights Agency 2015, pp. 2–3.

See the Joint Statement, Riga, where the JHA Council states: ‘Respect of fundamental rights is crucial in the fight against terrorism. Our common work must be based on a proper balance between security and fundamental rights’. See Chap. 15 by Conte in this volume.

In Europe, the rights to privacy and to data protection are established by different instruments adopted within the Council of Europe and the EU. Cf. Roagna 2012, p. 6 et seq.; Fundamental Rights Agency and Council of Europe 2014.

Müller-Witte 2004, p. 12.

This chapter focuses on the members of the European Intelligence Community that have a counter-terrorism—‘terrorism’ meant as a either a security threat or a serious crime—mandate and may produce and/or share intelligence to be strictly relevant for countering foreign fighter-related terrorism. Although relevant, cooperation on financial intelligence goes beyond the scope of the present chapter.

For example: the ‘Standing Committee on operational cooperation on internal security’ (COSI) established by Article 71 of the Treaty on the Functioning of the European Union (TFEU) and set up within the Council by Council Decision 16515/09, 27.11.2009, at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2016515%202009%20INIT; the Working Party on Terrorism (TWP) where Member States exchange information about current terrorism-related incidents; the Working Party on Terrorism (International Aspects) that coordinates the Member States positions on international aspects of the fight against terrorism and carries out threat analyses.

As explained by Cross 2013, p. 389 and 391, professionals from the cited institutions, agencies as well as formal and informal groups constitute the EU ‘trans-governmental intelligence network’. With regard to the Berne Club see para 18.4.

Hertzberger 2007, p. 51 et seq.

It should be noted that Frontex’s legal basis gives the agency a mandate for dealing with ‘cross-border crime’; this means that it has no competence on terrorism per se. Cf. Sect. 18.5.4.2.1.

The EU decision-makers can also be provided with relevant imagery intelligence by the EU Satellite Centre. The Centre is an agency of the Council of the EU that has the capability of contributing to the fight against organised crime and terrorism. The Centre was created by the Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre, in OJEU L 200, 25.7.2001, p. 5 et seq., and further amended by Council Joint Action 2009/834/CFSP of 10 November 2009, in OJEU L 297, 13.11.2009, p. 18 et seq.

Hertzberger 2007, p. 13.

The word ‘exchange’ usually refers to the flow of information between two parties irrespective of their geographical or institutional connotation. For example, exchange may occur between two national security services or between a security service and a supranational agency (e.g. Europol).

Terrorism—and organised crime—are targeted as key security threats by both the European Council, see the European Security Strategy ‘A Secure Europe in a Better World’, Brussels, 12.12.2003, pp. 3–4, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/reports/78367.pdf, and the Council of the EU, see the Internal Security Strategy for the European Union: Towards a European Security Model, Brussels, 23.02.2010, 5842/2/10, p. 2, available at http://register.consilium.europa.eu/pdf/en/10/st05/st05842-re02.en10.pdf.

See also supra Sect. 17.1.

The collection, processing and analysis of information about crime or criminal activities with a view to establishing a strategic, future-oriented and targeted approach to crime control is also known as ‘intelligence-led policing’. Cf. Ratcliffe 2008, p. 1 et seq; Mc Garrell et al. 2007, pp. 142–158.

In many Member States, security and intelligence services can retrieve information from closed or classified sources only after they have exhausted open sources. Hertzberger 2007, p. 38 et seq. With regard to the different intelligence disciplines through which information can be collected cf. the UK MoD 2011, Section V, Nos. 222–229.

It is worth reporting the model developed and implemented by the Danish Security and Intelligence Service together with the Ministry of Social Affairs in order to disrupt the radicalisation process of potential and actual fighters. Essentially, the model is based on the full engagement of civil society in preventing the radicalisation of the members of religious communities. Among other things, it relies on ‘field’ workers trained to detect warning signs, such as suddenly skipping school or keeping a new distance from friends and family, which can precede the decision to become a Jihadi. See Khader 2014. Cf. also the UK Counter-Terrorism and Security Act 2015, part. 5, Chaps. 1 and 2, available at http://www.legislation.gov.uk/ukpga/2015/6/contents/enacted.

Bakker et al. 2013, p. 6.

See Chap. 6 by Weimann in this volume.

See the European Convention on Human Rights 1950, Article 8.

Roagna 2012, p. 52.

Ibid.

At the European level, the CoE Committee of Ministers, Recommendation No R(87) 15 regulating the use of personal data in the police sector, 17.09.1987 provides non-binding principles to inform the domestic processing of personal information by LEAs.

Article 29 WP, Working Document on surveillance of electronic communications for intelligence and national security purposes, WP 228, 5.12.2014, at http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp228_en.pdf.

At http://www.consilium.europa.eu/en/policies/fight-against-terrorism/foreign-fighters/.

The Club was formed in the 1970s as a forum for the security services of six EU Member States. Norway and Switzerland participate in the Club too. Walsh 2009, p. 7.

The CTG was formed in 2001. The US takes part in the Groups too. As described by Hertzberger 2007, pp. 61–62, ‘The CTG works as follow: one Member States initiates a question, and has a leading role for this topic. Information is gathered from various Member States. The leading Member States then proceed to analyse, report, and distribute this information. […] The factors that make CTG a successful forum are the informational depth of the products, the relevance of the products for the interests of Member States, and the confidentiality and restricted access to information’. Cf. also Rettman 2011.

See http://www.consilium.europa.eu/en/policies/fight-against-terrorism/foreign-fighters/.

Cf. Article 29 WP, Working Document on surveillance of electronic communications for intelligence and national security purposes. See Martin 2002, p. 20 et seq.

Roach 2012, p. 129 et seq.

Cf. CFD 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, 27.11.2008, OJEU L 350/60, 30.12.2008, pp. 60–71.

Pizzetti 2013, p. 1159.

CFD 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, 18.12.2006, in OJEU L 386, 29.12.2006, pp. 89–100. Iceland, Norway, and Switzerland take part in the cooperation established by the CFD. Mitsilegas 2009, p. 254.

The European Council, The Hague Programme on Strengthening Freedom, Security and Justice in the European Union, Section 2.2.1, in OJEU C53, 3.3.2005, p. 1 et seq.

CFD 2006/960/JHA, Article 1(1).

Ibid., Article 2(a)(c)(d).

Ibid., Article 8.

See supra n. 1 and 3.

Commission, Proposal for a Directive on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, COM(2011) 32 final, Brussels 2.2.2011, at http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2011/0032/COM_COM(2011)0032_EN.pdf. A new draft text on the EU PNR system was discussed in the Civil Liberties Committee on 26 February 2015. It is worth noting that some Member States already have national PNR systems (e.g. the UK) in place, while others have either enacted legislation or are currently testing PNR data systems. More information at http://www.europarl.europa.eu/news/it/news-room/content/20150123BKG12902/html/EU-Passenger-Name-Record-(PNR)-proposal-what's-at-stake.

See Chap. 16 by de Kerchove and Höhn in this volume.

PNR data consists of travel dates, travel itinerary, ticket information, passengers contact details, seat number and baggage information, and payment information. Proposal for a Directive on the use of Passenger Name Record data, para 1, p. 3.

Each Member State would have to identify the competent authorities entitled to request or receive PNR data or the result of the processing of PNR data from the PIU. Ibid., Article 5.

Cf. Fundamental Rights Agency 2014.

Council Decision 2009/371/JHA establishing the European Police Office (Europol), 6.04.2009, in OJEU L 121/37, 15.5.2009, p. 37 et seq.

Joint Statement, Riga.

Check-the-Web is an electronic portal managed by Europol which stores information regarding Islamist extremist websites and statements of terrorist organisations published on the internet. The portal makes that information available to Europol staff and MSs LEAs. See Council of the EU, Report to the Council on the use of personal data in the Check the Web project, 9604/09, 2009, p. 4 et seq., at http://www.consilium.europa.eu/register/en/content/out/?&typ=ENTRY&i=ADV&DOC_ID=ST-9604-2009-INIT. The Check the Web initiative is now part of the EU IRU (Internet Referral Unit; operational as of 1 July 2015) and offers extra operational and strategic analysis and requests for referrals to private internet companies.

In the field of terrorism trend analysis, Europol provides the Member States and EU agencies and decision makers with periodic reports that identify developments in that area. The main product is the yearly Terrorism Situation and Trend Report (TE-SAT) available at https://www.europol.europa.eu/latest_publications/37.

Non-EU States and international bodies may cooperate with Europol on the basis of a cooperation agreement.

Council Regulation 2007/2004/EC establishing the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 26.10.2004, in OJEU L 349, 25.11.2004, p. 1 et seq., consolidated version at http://ec.europa.eu/dgs/home-affairs/pdf/fr_reg_consolidated_en.pdf.

Council of the EU, Draft Council conclusions on Terrorism and Border Security Brussels, 9906/14, 16.05.2014, pp. 4–6.

See http://frontex.europa.eu/intelligence/strategic-analysis.

Council Decision 2009/371/JHA, Ch. V, Article 27-35; Council Regulation 2007/2004/EC, Article 11.

The EEAS INTCEN is rooted in the EU Joint Situation Centre (EU SITCEN) that was established as a Directorate of the Council General Secretariat in 2002. With the entry into force of the Lisbon Treaty, EU SITCEN came under the authority of the High Representative of the European Union for Foreign Affairs and Security Policy/Vice-President of the Commission. In 2011 it was transferred to the EEAS, and renamed EU INTCEN the following year. The legal basis for its establishment remains unclear. See Rehrl and Weisserth 2013, p. 40 ff; Jones 2013, pp. 1–2; EU INTCEN Fact Sheet 2015; Clerix 2014.

As stated by Cross 2013, p. 394: ‘This distinguishes IntCen as an EU security agency, and ensures that it is well-positioned to help EU decision-makers achieve their main security goals’.

Among the EU ‘customers’ there are the High Representative, the Counter-Terrorism Coordinator, Member States’ representatives in the Political and Security Committee, which allows them to be disseminated further into national State bureaucracies, the Working Party on Terrorism, and several Directorates-General at the Commission. Cross 2013, p. 393.

Not all Member States provide intelligence to the INTCEN, but all 28 receive INTCEN’s analyses through their ambassadors in the Political and Security Committee. According to INTCEN Fact Sheet, 2015: ‘EU INTCEN’s analytical products are based on information provided by Member States’ security and intelligence services, open sources (media, websites, blogs etc.), diplomatic reporting, consular warden networks, international organisations, NGOs, CSDP missions and operations, EU Satellite Centre, visits and field trips’. Information used in assessments is apparently also received from ‘all relevant departments within the Council, Commission and the EEAS including EU delegations’. Jones 2013, p. 5.

Rehrl and Weisserth 2013, p. 44.

Hertzberger 2007, p. 70.

McGruddy 2013, p. 215.

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Titel: Collecting and Sharing Intelligence on Foreign Fighters in the EU and its Member States: Existing Tools, Limitations and Opportunities
verfasst von: Matteo E. Bonfanti
Verlag: T.M.C. Asser Press
Buch: Foreign Fighters under International Law and Beyond
Print ISBN: 978-94-6265-098-5

Electronic ISBN: 978-94-6265-099-2

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-94-6265-099-2_17