Council of Ministers: Home Affairs

Dear Delegates,

Welcome to Yale Model Government Europe and to the Home Affairs Council of the European Union. My name is Elisabeth Siegel (please do call me Lis), and I will be your director for the Home Affairs council. Through this Council, you’ll get the chance to debate incredibly relevant issues, including national security, that directly impact the European Union and each of the states within.

A little more about me: I am a half Chinese sophomore at Pauli Murray College within Yale University, aiming to major in Global Affairs and Modern Middle Eastern Studies. I come from Northern California, however, around an hour from San Francisco — I’m definitely not used to the snow yet — and international relations has always been a passion of mine. Within the Yale International Relations Association, I’ve been involved with a number of conferences, particularly on the Yale Model United Nations’ secretariat and chairing for the Security Council Simulation at Yale, and I also edit for the Yale Review of International Studies. Outside of YIRA, I’m the Vice President of Yale Students of Salaam, an organization that provides in-school and in-home tutoring support for newly arrived refugees in New Haven. I'm also the president of Middle East Resolution through Education Action and Dialogue. For fun, I enjoy magazine design, reading, attending all sorts of concerts and nerding out over modern Chinese films.

As we debate issues of home affairs at such a significant turning point in EU history, I’m decided to go deeper into the exploration of questions about what it means to be secure in the 21st century, as well as the ins and outs of different philosophies behind the prioritization or de-prioritization of internal security.

I’m really excited to get to know you come November. If you have any questions, concerns, or desires to chat with me at all before then, feel free to contact me at elisabeth.siegel@yale.edu.

Sincerely,

Lis

Because the Commission has an annual work program on issues of JHA, the vast majority of proposals on new members come from the Commission. The decision-making process begins with a Communication along with Staff Working Papers and an Impact Assessment. The Commission may then consult on a proposal for a Member-State-implemented directive, or a Regulation, which is applied to intra-EU institutions. These proposals need to then be approved by the College of Commissioners before being sent to the Council and the European Parliament.Working parties within the Council constitute representatives from the 27 Member States, who could have roles such as police, immigration, Interior, or Justice ministers. The Working Parties look for agreement among the member states on a “General approach” to the proposal, which is then the basis for negotiating with parliament.After COREPER II agrees on their approach, the groups meet in trilogues to discuss “compromise amendments.” If an agreement is reached in the trilogue, then the LIBE Committee (civil liberties) formally agrees and passes it to a plenary session, where a simple majority of Members of European Parliament (MEPs) can pass it.The Amsterdam era also resulted in a major change for the European Parliament, as it was given co-decision powers after a “transitional period” of five years on asylum and immigration issues.The Lisbon era has been in effect since 2009. The major changes made to the JHA in this era include direct changes to the Treaty, including mentions of the three “pillars” being removed — although their legacy lives on within the EU community acquis — as well as parliament finally receiving equivalent powers related to policing and criminal law, and the procedure of co-decision being renamed to “the ordinary legislative procedure.”The Home Affairs Council (commonly known as the Justice and Home Affairs (JHA) Council) will focus at this conference on issues of pan-European security and national security for the EU’s member states as that relates in particular to migration policy and securing against issues of potential violence or terrorism.

The EU’s dealing with issues of justice and home affairs historically has five distinct eras of governance and legislation.

The TREVI (Terrorisme, Radicalisme, Extremisme et Violence Internationale) era, between the years of 1975 and 1993, consisted of an intergovernmental network among the ministers from various EU states’ justice and interior departments. The network was set up in the years 1975 and 1976 by 12 European Council states in order to counter terrorism and coordinate policing. The process then excluded the main European Council institutions — i.e. The European Commission and the European Parliament — and was premised upon merely intergovernmental cooperation. There were three levels of Trevi: Ministerial (meetings of Interior Ministers), Senior Officals, and the working parties (on which sit Interior/Home Ministry officials, senior police officers, etc.) Several countries outside the European Council were given “observer” status: Sweden, Austria, Morocco, Norway, Switzerland, Finland, Canada and the USA. Two of the five Trevi working groups are still continued in the same capacity today: Working group 1 (Trevi 1) was responsible for coming up with counterterrorism measures, and working group 2 (Trevi 2) was intended for scientific, technical knowledge for police training, though it later expanded to embrace general issues of public order.

Working group 1 in May 1977 agreed that EC states would:

i. Produce reports gained from the handling of any major terrorist incident

ii. Exchange information on the arrangements for handling major terrorist events, especially in event of an incident involving more than one country.

iii. Establish central contact points for the exchange of information on international terrorist matters.

In 1989, the Declaration of Trevi Ministers discussed “new requirements” within the creation of a “European area without internal borders” and the continued need to collaborate on fighting terrorism, international and transnational crime, narcotics, and all cases of illegal trafficking. In 1990, Trevi Ministers agreed in Dublin on a “Programme of Action,” defined as a synthesis of police and security services on terrorism and trafficking.

The signing of the Schengen agreement marked the beginning of the Schengen era, which lasted from 1985 to 1999, and consisted of the desire to “police” the Schengen area by dissolving checks between EU nations’ borders. Titles II through IV respectively dealt with the movement of people, visas, asylum and aliens; police and security (i.e. mutual assistance, extradition, firearms, and drugs); and the Schengen Information Database.

Schengen countries have continued with the process of abolishing internal border controls while instituting agreements on “hot pursuit” and potential legal issues regarding counterterrorism and policing. Overall, the issues that the Schengen countries took on — i.e. asylum, drug trafficking, border controls, immigration, and policing — did not deviate from those tasks of the Trevi Group.

The Maastricht era referred to the passing of the Maastricht treaty. Title K of the Maastricht Treaty covered issues of justice and home affairs and was in effect between the years of 1993 and 1999, created the “three pillars” of Justice and Home Affairs issues to be targeted by the council. Trevi was incorporated as the third pillar, while the first and second became respectively economic social affairs and Common Foreign and Security Policy (CFSP). They dealt with the first pillar jointly alongside European Parliament. It was at this point that the modern iteration of the Council of Justice and Home Affairs became an official entity, as the Interior Ministers began to meet as the Council of Ministers, along with working parties reporting to the K4 committee before measures were sent to the European Council for execution.

The following era, the Amsterdam era, came into effect from 1999 to 2009. The EU set up a Directorate-General for JHA, which was in later years split into two separate DGs: DG Home (internal security and immigration) and DG Justice. Schengen was incorporated into the Maastricht Treaty framework (see above image for the countries this involved), allowing more countries to have a say in JHA.

The Amsterdam era also resulted in a major change for the European Parliament, as it was given co-decision powers after a “transitional period” of five years on asylum and immigration issues.

The Lisbon era has been in effect since 2009. The major changes made to the JHA in this era include direct changes to the Treaty, including mentions of the three “pillars” being removed — although their legacy lives on within the EU community acquis — as well as parliament finally receiving equivalent powers related to policing and criminal law, and the procedure of co-decision being renamed to “the ordinary legislative procedure.”

Within the JHA, there is a DG Home and a DG Justice, and our committee is focused specifically on Home Affairs. The JHA is able to adopt Council Decisions, most often concerning foreign affairs or international relations, as well as Conclusions, which are non-binding “soft laws.” These Conclusions, although non-binding, set policy guidelines for future Committee proposals and allow for joint action to be taken by two or more member states. JHA issues are discussed among the Council, COREPER II, 24 Working Parties, the Standing Committee on Immigration Frontiers and Asylum (SCIFA), and CATS (Police and Criminal Law).

Because the Commission has an annual work program on issues of JHA, the vast majority of proposals on new members come from the Commission. The decision-making process begins with a Communication along with Staff Working Papers and an Impact Assessment. The Commission may then consult on a proposal for a Member-State-implemented directive, or a Regulation, which is applied to intra-EU institutions. These proposals need to then be approved by the College of Commissioners before being sent to the Council and the European Parliament.

Working parties within the Council constitute representatives from the 27 Member States, who could have roles such as police, immigration, Interior, or Justice ministers. The Working Parties look for agreement among the member states on a “General approach” to the proposal, which is then the basis for negotiating with parliament.

After COREPER II agrees on their approach, the groups meet in trilogues to discuss “compromise amendments.” If an agreement is reached in the trilogue, then the LIBE Committee (civil liberties) formally agrees and passes it to a plenary session, where a simple majority of Members of European Parliament (MEPs) can pass it.

Cooperation in fighting terrorism and for mutual national security has been a focus of the JHA Council since the Trevi period generated the Trevi 1 working group. The EU’s approach and prioritization level of terrorism as a whole has definitely not remained fixed, and the subject rose considerably in significance after the 2001 World Trade Center attacks in the US, and more after the Madrid and London bombings in 2004 and 2005 respectively.

Dealing with terrorism and pursuing suitable counterterrorism paths are politically fraught territories. Measures such as the later-mentioned Passenger Name Records system were considered quite divisive after posed. These illustrate the sometimes inherent conflicts between intensified security policy and the protection of certain civil liberties and individual freedoms.

EU initiatives on counterterrorism currently include an Internal Security Strategy (2010-2014, then updated in 2015 with a European Agenda on Security), the Schengen Information System, the Radicalization Awareness Network, and the US Terrorist Finance Tracking Program.

Italian Prime Minister Matteo Renzi once suggested that the EU might even set up its own intelligence agency to properly reckon with threats of terrorism.

Certain countries have special considerations with any overall EU reforms made to home affairs. Denmark, for example, has a policy of blanket-opting-out of any justice and home affairs cooperation issues without first having a national referendum on the issue. Brexit has made any changes to be made with British cooperation on thin ice at the very least, with a blanket opt-out institute Denmark-style in 2014 (yet later Britain re-opted into over 35 pieces of JHA legislation). Ireland also is not a full JHA participant.

Several landmark terrorism cases within the last 17 years have resulted in various steps taken by the EU and specifically advised or adopted by the Home Affairs Council. This section will provide a brief overview of those responses as well as cover other important recent decisions or new plans made by the JHA Council or the EU in general.

9/11

The EU adopted its first specific counter-terrorism measures in the wake of 9/11.

These steps included heightened exchanges of intelligence and increased cooperation with the US, particularly with regards to air safety. A regulation allowed EU member states to freeze the bank accounts of terrorists within Europe, naming a list of 27 organizations potentially implicated in the 9/11 attacks.

Additionally, the EU adopted the European arrest warrant, which allowed for cases of terrorism or other serious crimes to supersede the usual lengthy extradition measures. 29 total crimes constituted grounds for use of the arrest warrant. Civil liberties groups expressed concern over whether these new legislations would interfere with NGO activities or protests.

Additionally, the EU created its first anti-terror blacklist.

Madrid & London (2004/2005)

In 2004, the Madrid train bombing resulted in 191 dead and 1,800 wounded.

Afterward, the EU appointed its first EU anti-terrorism coordinator, Gijs de Vries, who stepped down in 2007. Belgian lawyer Gilles de Kerchove was appointed in 2007. The anti-terrorism coordinator found that he lacked any actual powers, as states were still reluctant to share information amongst themselves related to anti-terrorism.

The 2005 London bombings resulted in the deaths of 52 civilians and over 700 wounded.

Also in 2005, the EU adopted a Counter-terrorism Strategy that was based on four “pillars”: prevention, protection, pursuit, and response.

Charlie Hebdo & 2016-2017 Paris Attacks

On the urging of the French interior minister, the EU Home Affairs Ministers held a meeting on February 12th that brought together the interior ministers from 28 countries that then outlined two tracks to follow after the Paris attacks: hampering the travel movements of terrorists, foreign fighters, and European nationals that cross the EU’s external borders, and countering terrorist propaganda, particularly on the internet, to try and eliminate the appeal for radicalization among young people. The countries in attendance agreed to enhance their cooperation with each other for law enforcement and also attempt to reduce illegal firearm supply throughout Europe.

Moreover, the countries resolved to emphasize cooperation with Europol, Eurojust, and Interpol, as well as implement special measures for the Schengen area. Some states have even taken steps since the attacks to reduce travel to Syria, Yemen, and other countries that are known in the international community for harboring violent terrorists or for hosting terrorist training areas.

They attempted to also revive the Passenger Name Records (PNR) system, which would provide a single registry of air traffic data. This resolution was tabled in 2011 following European Parliament’s concerns over individual privacy and freedom of travel. The Commission proposal outlined more than 60 different types of PNR data to be collected on passengers, including computer IP addresses, hotel bookings, credit card information, and dietary information. According to the original proposal, all of the data would help home affairs investigators tracking terrorists transnationally. Up to 16 EU countries have started collecting PNR data on their own, but because of the lack of an EU-wide functioning framework, airlines deal with lack of clarity around how to use the data, and civilians have no coherent basis for defending their own rights from these potential intrusions.

Many other MEPs were skeptical about the validity of the PNR system, arguing that it could very well encroach on privacy and freedom. The initiative was later voted down by a liberal and leftist coalition of voters within Parliament.

Assessment of post-Hebdo EU functioning indicated that cooperation on justice and criminal matters remained the “Achilles’ heel” of EU integration, because information exchange between member countries was very uneven. Anti-terrorism strategies were still limited in their scope because of this deficiency.

The JHA Council made a decision on November 20, 2015 to launch the European counter terrorism centre (ECTC) in January 2016. The ECTC would be a platform through which member states could share information and cooperate operationally on monitoring and investigating terrorism and firearms trafficking.

Between December 18, 2015, and June 10, 2016, the Council developed a “roadmap” for improving information exchange and management, which the JHA Council endorsed.

The EU Internal Security Strategy, which became the European Agenda on Security

The European Agenda on Security establishes means and methods for a “coordinated response at European level.” The agenda implements the Political Guidelines of European Commission President Jean-Claude Juncker for security and replaces the Internal Security Strategy (see above).

Out of all emerging threats that the EU faces at this time, the Agenda specifically prioritizes “terrorism, organized crime and cybercrime” as “interlinked areas with a strong cross-border dimension, where EU action can make a real difference.” The agenda speaks of a desired “shared agenda” to create “an EU area of internal security.”

The Agenda posits itself as a continuation of the Security Strategy and one that upholds the framework established by the Treaty of Lisbon, which reinforced the legal framework of cooperative efforts for liberty and security, as well as free movement and responses to cross-border threats.

The first of five principles espoused by the treaty is “[ensuring] full compliance with fundamental rights.” These rights are enshrined in the “common democratic values of our own societies,” and the agenda emphasizes that every approach must be taken in confluence with the Charter of Fundamental Rights, and that free movement and personal data protection must be in line with the proportionality principle and fundamental rights.

Next, the Agenda argues that more “transparency, accountability and democratic control” is needed to “give citizens confidence.” The Commission will need to update Parliament and the Council on the implementation of the Agenda, and develop performance indicators for EU instruments. The Commission also set up in 2015 an EU Security Consultative Forum bringing together Member States, the European Parliament, EU agencies, representatives of civil society, representatives from academia, and representatives from the private sector.

Third, the Agenda advocates for “better application and implementation of existing EU instruments.” This goal can be accomplished, according to the Agenda, by assisting in fostering cross-border operational cooperation between “competent authorities,” as well as using existing tools for information sharing in order to develop mutual trust.

The fourth point that the Agenda highlights is the need for a “more joined-up inter-agency and a cross-sectorial approach.” The Agenda emphasizes that Justice and Home Affairs and relevant agencies need joint approaches amongst themselves that can help support and provide expertise for Member States and the EU, functioning as information hubs that also implement EU law and play an important role in uplifting operational cooperation and enforcing cross-border actions.

Finally, the Agenda argues that the EU needs to bring together “all internal and external dimensions of security.” The security threats that the EU faces currently cannot be confined by the mere borders of the EU, and so actions must combine the internal and external dimensions in order to reinforce trust and cooperation between Justice and Home Affairs and Common Security and Defence Policy. The added value of “existing policy dialogues on security” conducted by the EU with countries, strategic partners, and organizations, extending the priorities of such dialogues to include cooperation in fight against terrorism and against smuggling.

The Agenda also desired to make the “deployment of security experts” in EU Delegations in European Neighborhood Policy countries and other targeted non-EU countries a priority. OTher agreements that have been advantageous so far include Mutual Legal assistance agreements with third countries, and firming up relations with other international organizations like the UN, Council of Europe, Interpol, and forums like the Global Counter Terrorism Forum.

Other points mentioned in the document include

• Intensifying the EU Policy Cycle for serious and organized crime in neighborhood countries

• Linking up the work of national Asset Recovery offices to improve cross-border freezing and confiscation of criminal assets

• Mutual recognition of freezing and confiscation orders should be improved

• Common approach on the neutralization of firearms to prevent reactivation and use by criminals

• Implement fully the operational action plan on the trafficking of firearms from the Western Balkans

• Continue to support member states’ activities in fighting illicit drugs using the expertise of the European Monitoring Centre for Drugs and Drug Addiction

• Cooperation against the smuggling of migrants inside the EU and with third world countries, offering assistance to help key transit countries to prevent and detect smuggling activities as early as possible

• Develop a post-2016 strategy against trafficking in human beings

• Strengthening compliance monitoring and enforcement against environmental crimes, by increasing training for enforcement staff, support the relevant networks of professionals, and by approximating criminal sanctions throughout the EU

• Preventing and fighting corruption through policy and monitoring initiatives

• Adopting the proposal for a Directive on network and information security, promoting better cooperation between law enforcement

• Implementing existing EU legislation in the realm of cybercrime

• Cooperation with the private sector to fight cybercrime

• Build on the existing work of the European Cybercrime Centre to turn it into a central information hub for law enforcement fighting cybercrime

Summary of key points: 
The five key principles outlined in the Agenda are as follows:

• Enforce “full compliance” with fundamental rights
• Ensure heightened transparency, accountability, and democratic control of the decision-making process
• Guarantee the more thorough application of EU legal instruments
• Encourage a cooperative and inter-agency approach
• Unify internal and external security measures and approaches

London attacks, 2017

In the wake of the Westminster bridge incident, the JHA Council held a two day meeting at Brussels, focusing on migration, security and counterterrorism. Specifically, members attempted to divine better ways of information sharing, risk assessment, and consistent justice responses to crimes of terrorism.

Ministers also focused on the implementation of the Valletta Joint Action Plan and the Malta Declaration, both of which focus on patterns of illegal migration into the EU.

On March 7th, 2017, the Council adopted a “directive on combating terrorism.” The legal framework of the EU to prevent terrorist attacks was strengthened and also criminalized undertaking training or travelling for terrorist purposes, as well as organizing such travel or helping such travel occur. Also on March 7, the Council adopted a regulation amending the Schengen borders code to “reinforce checks against relevant databases at external borders,” which mandates that member states use databases to conduct checks on any person passing through an external border.

On April 25, 2017, the Council adopted a directive on control of the acquisition and possession of weapons, which aimed to improve existing legislation on firearm protections in the aftermath of terror attacks. The directive includes “measures to enhance traceability of firearms” and “to prevent the reactivation or conversion of firearms.”

Criticism of EU’s counter-terrorism strategies’ implementation

Certain aspects of the EU’s Agenda as well as other JHA decisions or advisements have not gone without controversy, especially among human rights watchdog organizations.

In November 2016, a handful of high-profile human rights organizations, including Amnesty International and Human Rights Watch, warned that “the overly broad language of the new EU Directive on Combatting Terrorism could lead to criminalizing protests and other peaceful acts,” in a statement published by HRW calling the directive “seriously flawed.”

Extenuating circumstances such as the ongoing refugee and migrant crisis that the EU is currently facing have put strains on relations between member states, especially with regards to border security and policing within the Schengen area.

Denmark has come under fire from the EU recently because of the European Commission’s May 2 declaration that Denmark would need to lift its border controls and observe the Schengen agreement, which Danish PM Rasmussen unequivocally defied. The EU has also started an infringement procedure against the Czech Republic, Hungary, and Poland for not taking their allotted number of refugees since the 2015 agreement. The Czech Republic has argued that this comes out of desires for security considerations to be prioritized above refugee lives. The three countries, along with Slovakia (which did not face an infringement procedure because of promises given by Bratislava to the EU executive), are known as the “Visegrad Four,” a group of countries that has often criticized EU policies on asylum seekers.

Within the EU, two political groups have emerged that are challenging the EU’s failures in information sharing, police cooperation, and cross-border investigations in the wake of terror attacks in Belgium, France and Germany. These parties, the EPP (European People’s Party) and ALDE (Alliance of Liberals and Democrats for Europe) in favor, and the S&D (Socialists & Democrats party in opposition, provide examples of potential bloc divisions that could separate members of the JHA who might want to intensify information sharing and others who do not.

Other controversies over considerations for privacy and personal liberties have also arisen among member states. France and the UK are two among a handful of member states pushing for a way to monitor message sent with end-to-end encryption for security purposes, especially when terrorism is at stake. A text adopted at Brussels on June 22 opened the door to “cracking encryption of digital services,” but a last-minute change proposed by the Netherlands aimed at protecting ordinary citizens’ communications privacy, especially on apps like Whatsapp, which use end-to-end encryption. States in support of the addition included the Nordic states, especially Sweden. An Estonian MEP, Marju Lauristin, has also been campaigning for changes to an European Commission proposal for e-privacy, writing that decryption, reverse engineering, or monitoring of encrypted communications should be prohibited, and that member states should not impose obligations on communications service providers that would weaken encryption of their networks.

Summary of key points

• Countries such as Denmark have disregarded EU orders on border security within the Schengen area, causing rifts
• Political alliances within the EU have emerged demanding heightened information sharing in the wake of terror attacks
• Other groups remain skeptical of such efforts
• Information security has caused controversy among EU nations because of concerns for individual liberties

• What stake does your country have in the regulation or de-regulation of borders? What are the pros and cons of each, specific to your country? What about for the EU?

• What kinds of trade-offs are justified between the security of the state and human rights? Are any trade-offs justified?

• What do you think are the best ways to combat threats to national security?