By now, even the old Europe is no longer immune to the terrorist attacks that have been perpetrated in recent times not only by terrorist groups arose from the fall of some Middle Eastern regimes, but also by the so-called foreign terrorist fighters - foreign terrorist fighters.
In order to prevent international terrorism on the European continent, the Council of Europe decided to adopt an additional protocol a few years ago to be annexed to the Convention on the prevention of terrorism with the aim of addressing the foreign terrorist fighters, ie fighters of the Jihad and expression of the cd molecular terrorism, considered a threat to unpredictability, which includes both the figure of the lone wolf, and the fighter returning from the fronts where the movements of Islamic terrorism operate. This kind of terrorism consists of the implementation of certain operations in some important areas of Iraq and Syria of a terrorist movement which, despite having suffered a series of severe blows from the international community through attacks by military aircraft of a group of States that have formed the US-led coalition, on the one hand, and the deployment of Russia, Turkey and Iran, on the other, is trying to realize the Caliphate, giving life as a first step to the Islamic State of Iraq and Syria (ISIS), which has not been recognized as a subject of international law by any State.
In the international context, thanks to the n. 2178 resolution of the 2014 adopted by the United Nations Security Council, what are the juridical constraints regarding the criminalization of the preparatory acts of this form of terrorism are determined. In order to provide a solution to this important evolution, the Committee of Experts, structured within the Council of Europe, has set up a Committee that has drafted a Protocol to be annexed to the 16 Convention on the Prevention of Terrorism in May 2005, which was brought to an end in May 2015. This Protocol comes into force after six States, of which at least four members of the Council of Europe, have deposited the instrument of ratification, acceptance or approval. On the same frequency wave, together with the 2005 Convention, the opening of this additional protocol is also permitted for those States that are not members of the Council of Europe.
Composed of 14 articles, this Additional protocol has first articles those concerning participation in an association or group, the act of receiving training, travel abroad, financing, organizing or facilitating travel abroad - clearly intended for terrorist purposes.
Each State is bound to take the necessary measures to qualify them as crimes in its internal law and each State is given the possibility to establish the conditions required, according to its constitutional principles, to inhibit travel abroad of individuals who are aspiring terrorists . This reference could be interpreted as a recommendation to adopt additional measures concerning the refusal to enter or travel from the territory of the States parties, in accordance with the United Nations Security Council resolution n.2178 / 2014.
In addition to developing these examples, in Additional protocol a network of contact points has been established between the States in order to make the timely exchange of all information relating to private individuals making trips to foreign countries for terrorist purposes safer.
Finally, there are two forms of legal protection. The first requires compliance with the constraints on the rights of the person, including those established in the European Convention for the Protection of Human Rights and Fundamental Freedoms of the 1950 and the International covenant on civil and political rights of 1977, in addition to other obligations contained in general international law. The second work in the relationship between the words and the expressions used in the Additional protocol, which are interpreted according to the 2005 Convention.
The urgent need for a protocol de quo, as an instrument of regional efforts to tackle the phenomenon of foreign terrorist fighters, can not be expanded. The 2005 Convention had outlined diverse forms of terrorist responsibility in broad terms but, for specific cases that are the modus operandi of the foreign terrorist fighters, one could hardly find a legal basis in the text. The Additional protocol it is one step away from being welcomed and filling the aforementioned gaps.
The impact of the Protocol on cooperation can be circumscribed by two factors. First, we need to see how the focal point contributes to facilitating the sharing of secret services or intelligence, since this is the field in which great distrust remains among states. In secundis, the reference to the 2005 Convention, contained in Additional protocol of the 2015, implies that the activities of armed forces are excluded during an armed conflict, in the sense given by these terms in the international law of armed conflicts or of humanity from its scope of application. The relationship between terrorism and international law of armed conflict is far from clear. Although there is not a single approach to the applicability of the corpus of the provisions that regulate the conduct of hostilities with respect to acts carried out by international terrorism, however, can not be ignored by the fact that states follow different approaches.
A final problem is inherent in the possibility that the issue on the rights of the person results from the broad definition of the preparatory acts of terrorism made by the Additional protocol. Making dependence on how States implement criminal offenses in their respective legal systems, the criminalization of the preparatory acts of terrorism may conflict with the fundamental safeguards protected by the ECHR (European Convention on Human Rights), such as the right to respect for private and family life or freedom of assembly and association.
Although this tension between justice and security is not new in the fight against international terrorism, the political-judicial negligence of the conduct of the state is expected to contribute to the search for a just right, at a time when the pendulum is moved towards the security of policies that have as their goal the fight against terrorism.
(photo: IDF)
