The role of Europol and Eurojust in countering the threat of FTFs: An evolving mandate

Introduction

Foreign Terrorist Fighters (FTFs) are individuals who travel abroad to join terrorist groups. ¹ Even though this is not a new phenomenon, it has attracted considerable attention in recent years because of the increased number of FTFs making their way to Syria to get trained in order to join terrorist groups such as Jabhat-al-Nusra and Da’esh in the jihad (and including FTFs originating in the European Union (EU)). ² These individuals can pose a major security threat to EU Member States given that they have been radicalised and trained to fight. There is therefore a risk that, after they return to the EU, they may carry out deadly terrorist attacks or engage in recruitment, training, propaganda or other terrorism-related activities. ³ As a result, since 2013 – when the former EU Counter-Terrorism Coordinator sounded the alarm about FTFs – the EU ⁴ and the Member States alone ⁵ have adopted a multidisciplinary strategy in order to curb the threat posed by FTFs. That strategy includes inter alia gaining a better understanding of the FTF phenomenon, preventing radicalisation, detecting the travel movements of FTFs, sharing information and coming up with a criminal justice response. ⁶

Given the transnational dimension of the FTF phenomenon, it has been acknowledged from the very beginning that an effective response to FTFs would entail intensifying cooperation between Member States and, in particular, with non-EU partners. For instance, in the landmark Statement of the members of the European Council in February 2015 in the aftermath of terrorist attacks in Paris, the Heads of State and Government called for information sharing and operational cooperation between law enforcement and judicial authorities, as well as cooperation with EU international partners, to be stepped up; ⁷ while, in the same vein, in the 2020 Security Agenda, the Commission highlighted that cooperation with key third countries is an important component of an effective criminal justice response to FTFs. ⁸ There is therefore no doubt that Europol – as the European Union Agency for law enforcement cooperation – and Eurojust – as the European Union Agency for judicial cooperation – can both play a very important role in strengthening cooperation and supporting Member States in their efforts to combat FTFs effectively, including in their relations with third States. ⁹ Indeed, both agencies have, in their respective mandates, established a number of instruments and mechanisms aimed at promoting cooperation not only between the law enforcement and judicial authorities of EU Member States (internal relations), but also with third partners, such as third countries and international organisations (external relations), which is of particular relevance when it comes to cases involving FTFs considering that their activities are not limited to the territory of the EU.

External relations of Europol and Eurojust follow a parallel path as both take place mainly by means of cooperation agreements allowing third partners and the two EU agencies to cooperate within the scope of their respective mandates, as described in detail below. Cooperation agreements concluded with third countries and other third partners are divided into two categories, depending on whether they allow for the exchange of personal data or not (for instance, working arrangements in case of Europol and Memoranda of Understanding in case of Eurojust, which are confined to exchanging technical and strategic information), ¹⁰ with the former having a greater added value for investigations. ¹¹ Both agencies have concluded a number of cooperation agreements with third partners, which have been chosen due to operational needs to counter serious crimes in a more effective way. ¹² Especially in terms of FTFs, agreements with the US – although this was not the underlying reason for their signature – are considered highly relevant in order to ensure an effective EU response as US authorities have gathered a considerable amount of ‘battlefield information’ (where evidence is located in conflict zones) and have experience in its use due to the 9/11 terrorist attacks. ¹³ In addition, based on these agreements, synergies with third countries can be further strengthened through the secondment of liaison officers and liaison prosecutors from third countries to Europol and Eurojust respectively who, working side by side with their colleagues from the EU Member States, can provide their support in cross-border cases, such as those concerning FTFs. A last form of cooperation is the appointment of contact points – for both Europol and Eurojust – in third countries who have created a global network through which the national authorities of Member States can liaise and cooperate more easily with their counterparts in a third country, in particular where there is no cooperation agreement. ¹⁴

Aside from the respective role that each agency can play in the fight against FTFs, Europol and Eurojust should cooperate closely with each other to scale up the chances of a successful response. Their cooperation is particularly necessary in the field of the so-called ‘criminal justice response’, which is one of the core pillars of the holistic approach to address FTFs and consists of investigating and prosecuting crimes allegedly committed by FTFs abroad. So far, FTFs have been mostly approached from a purely terrorism-oriented perspective, with national authorities initiating prosecutions only for terrorism-related crimes, and in particular for lesser offences such as participation in a terrorist organisation. ¹⁵ Yet, aside from terrorism, FTF activities have very often been intertwined with other serious crimes, namely core international crimes (war crimes, crimes against humanity and genocide). ¹⁶ Therefore, an adequate criminal justice response would require that FTFs be held responsible for all crimes committed in conflict zones in order to lead to their greater accountability. ¹⁷

Despite the increase in the number of prosecutions for crimes (terrorism-related and other serious crimes, such as core international crimes) involving FTFs in recent years, these still seem to be limited in number. ¹⁸ This can be attributed to a number of challenges, notably pertaining to the collection and use of evidence and restrictions on international cooperation. ¹⁹ Meeting the requirements of the burden of proof – especially in cases of international core crimes or serious terrorist offences where the proof of the mere fact of participating in a terrorist group is not enough – is proving to be very challenging for national judges and prosecution authorities, particularly where the evidence concerning FTFs is located in conflict zones (the so-called ‘battlefield evidence’). A key characteristic of ‘battlefield evidence’ is its high degree of complexity. It is important to highlight, in particular, two limitations related to its collection given the ongoing conflict and its use in criminal proceedings due to its – very often – dubious origins, which may cast doubt on the reliability of the evidence. According to the Memorandum of Battlefield Evidence published in 2020 by Eurojust, military forces, international bodies (for example, the UN Independent Investigative Mechanism for Myanmar and the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL ²⁰ ) and NGOs are the main actors who are present in conflict zones and have gathered valuable battlefield information. ²¹ As a result, in order for the national authorities of Member States to obtain this evidence ensuring, at the same time, its admissibility and conformity with European fair trial standards, international cooperation is crucial. In this regard, Europol and Eurojust can, given that they are the most important EU actors in the field of police and judicial cooperation, provide invaluable support to law enforcement and judicial authorities.

Against this backdrop, this contribution aims to shed light on the role that the two EU agencies play in countering the threat of FTFs. First, it describes the support that Europol and Eurojust can provide national authorities with in order to strengthen their efforts to cope with the phenomenon of FTFs. The emphasis then shifts to interagency cooperation whilst focusing on two issues: the areas in which the two agencies cooperate or should cooperate very closely and the challenges arising from this, in particular with regard to the collection and use of evidence.

Europol

According to Article 88 of the Treaty on the Functioning of the European Union (TFEU), Europol’s mission is to support and strengthen action by the Member States’ law enforcement authorities in preventing and combating serious crimes. ²² To this end, Regulation 2016/794, as amended by Regulation 2022/991 ²³ (hereinafter: ‘Europol Regulation’), ²⁴ vests Europol with the power to provide information-related support (exchange – storage – (operational and strategic) analysis of information), assist national authorities in ongoing investigations (coordination and expertise), engage in specialised training and spread knowledge on crime prevention methods, investigative procedures, and technical and forensic methods. ²⁵ Making use of its powers and its advanced tools, Europol has considerably helped Member States tackle the FTF phenomenon while the recent revision of its mandate is expected to further enhance Europol’s capacity, as will be demonstrated below. In particular, the Agency can support Member States’ national authorities in preventing radicalisation that is perpetrated via the dissemination of internet content promoting terrorism or violent extremism (2.1.), in identifying and detecting FTFs after they have come back into the EU (2.2.), in investigating cases involving FTFs (e.g. terrorism-related crimes and international core crimes) (2.3.) and in gaining a better understanding of the FTF phenomenon and how to cope with that through strategic assistance and training activities (2.4.).

Eurojust

In accordance with Article 85 TFEU, Eurojust’s mission is to support and strengthen judicial coordination and cooperation between the national investigating and prosecuting authorities of the EU Member States. ⁷⁶ To this end, Regulation 2018/1727 (hereinafter: ‘Eurojust Regulation’) ⁷⁷ has empowered Eurojust to coordinate investigations and prosecutions, assist with the application of cooperation instruments, facilitate exchange of information and disseminate best practices and experience among the judicial authorities of EU Member States. ⁷⁸ As a result, Eurojust – given that it is in charge of facilitating judicial cooperation at EU level ⁷⁹ – plays a prominent role in helping national authorities, on the one hand, overcome difficulties resulting from the cross-border dimension of crimes involving FTF and, on the other hand, better understand the phenomenon of FTFs ⁸⁰ as well as the related challenges and, in turn, in helping them define an effective criminal justice response. A key working partner of Eurojust in this regard, both in daily casework and strategic matters, is the European Network for investigation and prosecution of genocide, crimes against humanity and war crimes (‘Genocide Network’), ⁸¹ whose role involves facilitating cooperation between the national authorities of the Member States when investigating and prosecuting core international crimes. In recent years, Eurojust has, in close collaboration with the Genocide Network, stepped up its activities to encourage the efforts of Member States to launch the so-called ‘cumulative prosecutions’ of FTFs for both core international crimes and terrorism-related offences ⁸² in order to ensure the full responsibility of FTFs for all crimes committed in conflict zones. ⁸³

In light of the above considerations, this Section will describe the role that Eurojust has played so far in supporting Member States in investigating and prosecuting FTF cases (operational support) (3.1.), and in developing a coherent judicial response to the FTF phenomenon as well as the necessary capacities to combat FTFs through strategic assistance and training activities (3.2.). However, as in the case of Europol, the Eurojust Regulation is under review. On 1 December 2021, the Commission tabled a proposal for the revision of the Eurojust Regulation as regards the exchange of digital information in terrorism cases; ⁸⁴ at the time of writing, the co-legislators have reached a provisional agreement on the proposed regulation which still needs to be approved by the Council and the European Parliament before proceeding to the formal adoption procedure. ⁸⁵ Furthermore, on 31 May 2022 – following a second Commission’s proposal adopted on 25 April 2022 ⁸⁶ – the Council and the Parliament amended the Eurojust Regulation to allow the agency to preserve, analyse, store and exchange evidence related to core international crimes. ⁸⁷ As will be explained below, both amendments will bring about significant changes which are likely to significantly strengthen Eurojust’s role in the field of FTFs.

Interagency cooperation

Although Europol and Eurojust primarily provide support and coordination, at least theoretically, to a different audience – law enforcement authorities and investigating and prosecuting authorities respectively – their cooperation and coordination are crucial in order to help Member States effectively combat the various forms of serious transnational crime for which they are competent. ¹³⁴ When it comes to FTFs, Europol and Eurojust cooperate closely with each other. However, this does not mean that interagency cooperation between the two agencies is ideal and takes place without any problems.

In 2010, Europol and Eurojust concluded a cooperation agreement which governs the relationship between the two agencies with the aim of enhancing their cooperation ‘in order to make the investigation and prosecution of crimes within their respective mandates as efficient as possible and to avoid duplication of effort’. ¹³⁵ Against this background, in September 2017, Eurojust posted a specialised counter-terrorism prosecutor (Seconded National Expert – SNE) to the previously mentioned ECTC, which coordinates Europol’s counter-terrorism efforts, including FTFs. ¹³⁶ As a result, Eurojust can be involved in the activities of the ECTC at Europol (e.g. operational meetings and joint action days planned by Europol). On the other hand, Europol, from its side, may attend coordination meetings organised by Eurojust during which both agencies exchange relevant information with each other. ¹³⁷ These elements should allow for synergies to be enhanced at both the operational and strategic levels with regard to cases involving FTFs.

In the case where the establishment of a JIT is deemed necessary for the coordination of investigations involving FTFs, the two EU agencies can cooperate very closely. ¹³⁸ As mentioned above, both agencies are empowered to assist national authorities in setting up and operating JITs, which can be composed of both law enforcement and judicial authorities; Europol and Eurojust are in turn allowed to participate in each other’s JITs in order to bring their support and expertise to the national authorities and enhance the chances of a successful outcome. ¹³⁹ Whilst JITs can indeed be seen as a good example of interagency cooperation, it is important to emphasise that some concerns have been expressed. In particular, conferring on Europol and Eurojust concurrent competences may lead to tensions between the two agencies and to overlapping activities. ¹⁴⁰ In order to avoid duplication of work, the 2010 cooperation agreement between Europol and Eurojust requires that both agencies inform each other of their participation in a JIT at the earliest opportunity and, more importantly, it sets out the respective assistance that they are allowed to offer while participating in JITs. ¹⁴¹ However, it is true that sometimes the allocation of tasks between Europol and Eurojust is rather complicated because of the considerable divergencies between national criminal justice systems in rules governing investigative activities (for instance, an act that would be carried out by the law enforcement authorities in country A may be performed by the judicial authorities in country B). ¹⁴² Thus, such a provision is not always sufficient to demarcate clear boundaries between the mandate of the two agencies. The division of competences between Europol and Eurojust is even more unclear when it comes to supporting national authorities to obtain evidence related to criminal activities involving FTFs, while the recent reform of the Eurojust Regulation may rekindle this tension.

Facilitating the collection and use of evidence with regard to FTFs has been, indeed, identified as one of the key areas where both agencies should cooperate very closely, as this poses a number of practical and legal challenges which are related notably to the origin of evidence and concern mostly evidence coming from battlefields and internet-based evidence. ¹⁴³ As explained above, the use of social media is very common in FTF cases so that internet-based evidence can play a core role in many investigations and prosecutions. In order to help national authorities gain access to e-evidence, the Scientific Information Retrieval Integrated Utilisation System project (the ‘SIRIUS’ project) was launched in 2017. This project is co-implemented by Eurojust and Europol in close partnership with the European Judicial Network (EJN), for the purpose of sharing knowledge on cross-border access to electronic evidence among national authorities by preparing, for instance, guidelines and templates for information requests to online service providers. ¹⁴⁴ Considering the highly professional use of new technologies in FTF cases, this project may turn out to be particularly effective in enhancing investigations for FTFs cases, especially since there is, as yet, no legal instrument at EU level regulating the collection of electronic evidence ¹⁴⁵ while negotiations concerning the proposals on e-evidence were, until very recently, blocked. ¹⁴⁶

However, interagency cooperation has proven to be rather complicated when it comes to battlefield evidence. As elaborated before, Europol plays a particular role in supporting Member States’ efforts to obtain evidence related to FTFs as the agency is running several Analysis Projects which may contain information relevant to FTFs (i.e. APs Travellers, CIC, ¹⁴⁷ Hydra and Dolphin) that has been gathered by various actors ranging from national law enforcement authorities and EU agencies and bodies to third countries and international organisations with which Europol has concluded agreements. This information is then analysed by Europol’s analysts and experts and important input about the cases can be drawn or even evidence can be produced. Eurojust, for its part, has been associated with these APs ¹⁴⁸ and can provide judicial follow-up based on Europol’s analysis. ¹⁴⁹

When it comes to battlefield evidence – at operational level – Eurojust’s role is mainly to facilitate access to this evidence by helping national authorities with the preparation of judicial cooperation requests or facilitating their interaction with actors holding battlefield evidence. However, as mentioned above, with regard to evidence related exclusively to core international crimes, the recent reform of the Eurojust Regulation has extended Eurojust’s power to preserve this evidence on a more permanent basis. As a result, two central storage facilities will be running in parallel concerning battlefield evidence at EU level, namely the AP CIC at Europol, and the forthcoming storage at Eurojust. Therefore, the question arises as to the precise added value of a central storage facility of battlefield evidence at Eurojust, – all the more so since Eurojust is associated to the AP CIC, and whether this is consistent with Europol’s mandate and its vision as the hub for criminal information at EU level. The European legislator justifies this amendment by invoking the complementary roles of Europol and Eurojust and the different audiences that they target. Nevertheless, as the Preamble of Regulation 2022/838 states, contributors to the forthcoming Eurojust storage will not only be judicial authorities of Member States – which should arguably provide Eurojust with the information they possess – but also other actors, such as EU agencies and bodies, international authorities and third parties (e.g. civil society organisations) ¹⁵⁰ who may become confused by the various storage facilities that are available at EU level. Similarly, it is not evident when information provided to Eurojust without being filtered first by police or judicial authorities in the course of an investigation would easily qualify as evidence that could be used in subsequent criminal proceedings. Therefore, one could argue that this provision may even be counterproductive to the EU effort to strengthen the collection of battlefield evidence. For instance, in the framework of counter-terrorism policy, it has been claimed that the limited contribution of Member States to the SIS can be, inter alia, attributed to the multiplicity of storage facilities. ¹⁵¹

In order to avoid duplication of work and resources, and ensure the efficiency of the parallel storage facilities, Regulation 2022/838 in Recital 15 points out that ‘Eurojust and Europol should closely cooperate in the context of their respective mandates in particular as regards the processing and analysis of information in the context of Europol’s existing and dedicated system (called analysis project) on international crimes’. It remains to be seen whether setting up a central storage of evidence at Eurojust will result in stepping up the gathering of battlefield evidence and how the interagency cooperation will work in the future.

Conclusions

It has become clear that Europol and Eurojust play a crucial role in countering the threat of FTFs. On the one hand, Europol’s mandate is broad as Europol does not only contribute to the stricto sensu criminal justice response to FTFs but it also helps Member States prevent radicalisation perpetrated via the dissemination of internet content promoting terrorism or violent extremism and helps them identify and detect FTFs upon their return into the EU. On the other hand, Eurojust’s role lies notably in assisting judicial authorities in ongoing investigations and prosecutions for crimes involving FTFs. In addition, both agencies actively contribute, within their respective mandates, to better understanding the phenomenon of FTFs and thus to defining an effective criminal justice response to FTFs by spreading experience and knowledge on FTFs and endorsing the best strategies to tackle this phenomenon.

However, two issues are still problematic.

The first one pertains to interagency cooperation. Although the distinction between the different roles of the two agencies is clear in theory, it may become rather complicated in practice, in particular with respect to tasks touching upon the collection and use of evidence, especially due to the recent reform of the Eurojust Regulation, which has added a new dimension to the already complex landscape of battlefield information allowing Eurojust to preserve, store and analyse evidence related to core international crimes. It appears, indeed, that both agencies have a role to play in this regard, leaving aside, for now, the question as to when Eurojust will actually be able to fulfil its new role in practice. This may be a consequence of the nature of Europol and Eurojust as ‘supporters’ of cooperation of national law enforcement and judicial authorities respectively, even though that distinction is not always tenable in practice. At national level, even within the same criminal justice system, both police and judicial authorities may be engaged, one way or another, in the process of evidence gathering. Therefore, one could argue that the picture cannot but be alike at EU level. Nevertheless, it is true that the lack of a clear division of competences between Europol and Eurojust in relation to the battlefield evidence presents certain risks. On the one hand, it may create tension and competition between the two agencies, and on the other hand, it blurs the boundaries with regard to each agency’s powers, thus creating confusion for those actors who are supposed to cooperate with both agencies in the context of the fight against FTFs, such as EU actors, national authorities and notably third partners. To address these problems, internal coordination and cooperation between Europol and Eurojust should be further enhanced in the future, including by amending and updating their operational agreement signed in 2010 in order to adapt it to recent developments.

Secondly, attention should be paid to the external relations of Europol and Eurojust. So far, both agencies have created a fairly broad network with third countries which provide for useful avenues for closer cooperation in this field, the most important one being the US authorities given their experience in the field of battlefield evidence. Nevertheless, there are still some shortcomings. As demonstrated above, neither Europol nor Eurojust have cooperation agreements with international organisations which play a prominent role in gathering battlefield evidence and, as a result, neither agency can promote Member States’ national authorities’ cooperation with the latter. Beyond that, the lack of cooperation agreements with Turkey and countries of the Middle East and North African regions (hereinafter: ‘MENA countries’) has been deemed to be a major gap in the framework of the two EU agencies’ external relations, ¹⁵² which should be filled, in particular in order to enable the agencies to receive battlefield information. In this context, on the one hand, in March 2021, the Council mandated the Commission to open negotiations with thirteen further third countries to conclude international agreements on cooperation between Eurojust and those third States, including Turkey and certain MENA countries. ¹⁵³ On the other hand, the negotiation process from Europol’s side is progressing more slowly. In December 2017, the Commission adopted eight Recommendations for Council Decisions to authorise the opening of negotiations for international agreements on cooperation between Europol and Turkey, and seven MENA countries, i.e. Algeria, Egypt, Israel, Jordan, Lebanon, Morocco and Tunisia. However, at the time of writing, the Council has not adopted any decision in this regard.

In order to establish an effective response to FTFs, swift and efficient cooperation between Member States and with third partners is imperative, and Europol and Eurojust, as the central EU actors in the field of police and judicial cooperation, can provide invaluable support in that respect. However, this requires that the two agencies be equipped with the necessary and adequate legal framework and tools in order to be able to fulfil their mission and support Member States to counter the threat arising from the phenomenon of FTFs. Of course, notwithstanding the paramount importance of establishing a solid legal basis for cooperation with third countries, one should not disregard that this would allow cooperation avenues in criminal justice matters to be built – including the transfer of evidence in some cases – with countries whose conformity with human rights standards is highly questionable. ¹⁵⁴ In the course of criminal proceedings, an individual’s fundamental right to freedom may be severely curtailed. As a result, efforts to efficiently counter the threat posed by the FTFs, including via the support provided by Europol and Eurojust, should always respect the imperative need for the highest level of human rights protection to be guaranteed.