UNHCR Observations on the

European Commission Proposal for a

Council Framework Decision on combating terrorism

(COM(2001) 521 final 2001/0217 (CNS))

1. UNHCR welcomes the impetus behind this initiative to facilitate the prosecution of persons suspected of terrorist acts, in particular to the extent that it would contribute positively to the development of appropriate international standards in this regard. Clear, internationally agreed criteria defining terrorist acts are relevant to the international refugee protection regime, especially as regards the application of the exclusion clauses contained in Article 1F of the 1951 Convention relating to the Status of Refugees, which form an integral part of that regime.

2. UNHCR seeks to comment on the proposal only in so far as it may affect the operation of the international refugee protection regime. One way in which this may occur is through the use of the definitions of terrorist offences that the proposal seeks to put in place, since these could have a bearing on the interpretation of the exclusion provisions of the 1951 Convention. Of particular concern are certain parts of the proposed Article 3, which in UNHCR's view need to be properly circumscribed. For instance, the unqualified listing of extortion, theft or robbery, and unlawful seizure of or damage to facilities as "terrorist offences" in paragraphs (d), (e) and (f) of the Article may not always be of the level of gravity required to activate the operation of the exclusion clauses of the 1951 Convention. Moreover, the "offences" described by paragraphs (k), (l) and (m) may potentially be interpreted to refer in fact not to crimes at all, but rather to activities that could be viewed as the legitimate exercise of recognised human rights. In this case there is an even stronger argument that these definitions should not be used to identify acts which would serve to exclude a person from refugee status. In addition to further defining precisely the acts and related purposes which will trigger the application of the Decision, it could be considered to add, in the first line of Article 3 after "necessary measures" the words "in accordance with international human rights law."

3. The reason for the aforementioned concern is related to the fact that the perpetrators of "terrorist acts," as this term is commonly understood as referring to very serious and unjustifiably harmful crimes, are excluded from refugee protection by a proper application of the terms of the 1951 Convention. In UNHCR's view, the vague and broad-brush approach of the current proposal in defining terrorist offences, while it would facilitate the prosecution of a wide range of criminal activities if committed with certain objectives in mind, may risk to widen unjustifiably the applicability of the Convention's exclusion clauses through the interpretive "back door". From UNHCR's perspective therefore, while the interpretation of Article 1F(b) of the 1951 Convention would be informed by the terms of this Decision, given the lower "prosecution" threshold of the Decision, it may not in all cases necessarily refer to the types of crimes to which Article 1F(b) is meant to apply. It may be desirable to explain this crucial difference in rationale between these provisions and the exclusion clauses in the explanatory memorandum.

4. In particular, there may be persons whose criminal activity does not rise to the level of an excludable act in accordance with the standards developed over the years of interpretation of the 1951 Convention, who should nevertheless be prosecuted. Even while they may be prosecuted and punished for criminal activity, the refugee protection of these latter persons should not be affected, as their actions are not of the nature or severity to invoke exclusion.

5. As regards paragraphs (l) and (m) of the proposed Article 3 in particular, the standards developed in respect of the exclusion clauses require either personal participation or personal knowledge and responsibility in the sense of contributing to the impugned acts, or failing to stop them. In criminalising, without qualification and without defining "a terrorist group" the "directing" and the "promoting of, supporting of or participating in" such a group, the proposal risks to encourage the exclusion of persons who may merely participate in legitimate expressions of political or other opinion, without any knowledge or responsibility for the encouragement of or support to crimes. This would not be in keeping with either existing State practice or with the doctrine developed under the 1951 Convention.

6. The proposal also contains a jurisdictional provision (Article 10) which provides that States may prosecute individuals for terrorist activities which have been committed at least partially in, or where there is a connection to, their territory. UNHCR welcomes the expansion of jurisdictional rules and the closure of loopholes to ensure that terrorist offenders do not escape justice. Moreover, prosecution based on extraterritorial jurisdiction, although limited here to situations where there is a minimum link between the offence and the state concerned, would help circumvent human rights-related concerns or impediments which might arise in case of return of the person to the country of origin for the purposes of prosecution. In this sense, the jurisdictional expansion may be viewed as a potential useful tool against impunity.

UNHCR Geneva

October 2001