The Council of Europe (CoE) is preparing to amend its legal definition of terrorism, to largely replicate key elements of the European Union’s (EU) definition in its Counter-terrorism Directive 2017 (and previous Framework Decision on Combating Terrorism 2002). The proposed definition aims to make the CoE definition more comprehensive than the CoE’s existing Convention on the Prevention of Terrorism 2005, which limits terrorism to offences under “sectoral” counter-terrorism conventions.
The CoE draft would reproduce the incompatibilities with international human rights law in the EU definition, despite the CoE priding itself on its founding mission to protect human rights in Europe. In October 2024, as Special Rapporteur on human rights and counter-terrorism I sent a diplomatic communication to the CoE raising concerns, to which the CoE replied.
The CoE’s draft is indeed based on proposals from (EU’s) European Commission, which were never made public, and is also intended to harmonize definitions across the two regional organizations with significant overlapping memberships. Switzerland expressed concern about the strong and non-transparent influence of the Commission on the CoE drafting.
Procedurally, the CoE’s closed inter-governmental Committee on Counter-Terrorism (CDCT) commenced its review of the definition in 2022 and adopted the draft in December 2023. In May 2024 it agreed to pursue that definition as an amending protocol to the CoE Convention on the Prevention of Terrorism 2005. In November 2024 it referred the draft to the Committee of Ministers for adoption, accompanied by a draft Explanatory Report. The latter has not been made public. The CoE had earlier indicated that any human rights concerns about the definition could be addressed in the Explanatory Report, but Switzerland recently complained that it had not had such opportunity to submit its concerns or those of mine as Special Rapporteur.
A striking feature of the CDCT process is the near-complete absence of meaningful public consultation or engagement with civil society organizations, despite the proposed definition having the obvious potential to affect human rights, the proposed amendment itself reaffirming that the protocol should accord with human rights, and the CoE even having guidelines to facilitate civil society participation. My forthcoming report to the Human Rights Council in March recommends how all regional organizations should enhance civil society engagement on counter-terrorism issues (see also here), in order to strengthen human rights compliance and ultimately the effectiveness of countering terrorism.
The proposed definition has various positive aspects. First, the conduct elements (actus reus) in article 1(1) are reasonably clearly drafted, many of them are properly limited to serious violence against people, and some are based on existing international counter-terrorism instruments. Secondly, two “specific intent” elements raise the threshold for liability above the standard in the 1999 Terrorist Financing Convention on which they are based, by requiring (following the EU) that the aim of a listed act is to “seriously” intimidate a population or “unduly” compel a government or an international organization. Thirdly, liability is raised further by the objective contextual requirement that the listed acts, “given their nature or context, may seriously damage a country or an international organization”, again borrowing from the EU.
The foremost human rights concern relates to the third alternative specific intent element, in draft article 1(2)(c), that an act must be committed with the aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”. Unlike other specific intent alternatives, which are based on international consensus reflected in the Terrorist Financing Convention, Security Council resolution 1566 (2004) and the Special Rapporteur’s model definition, this provision lacks precedents in international law and goes further than best practice international standards.
It has been widely criticized by numerous stakeholders, including the CoE Commissioner for Human Rights, European Parliament, OSCE’s Office for Democratic Institutions and Human Rights, EU Fundamental Rights Agency, and Switzerland in the drafting. There is little jurisprudence interpreting it. Reference to “fundamental… structures” is vague, invites subjective interpretation, and brings real risks of arbitrary application and over-criminalization. The notion of “destabilizing” such structures adds further ambiguity, as many violent acts could be construed as destabilising to some degree, even if the resulting harm is minor. Without clearer definitions, this provision risks chilling legitimate activities, undermining fairness, and misclassifying acts that do not rise to the level of terrorism. To the extent that the provision aims to protect legitimate interests, these are largely already covered by the other specific intent elements of intimidating the population and compelling the government.
The principle of legal certainty under article 15(1) of the International Covenant on Civil and Political Rights requires criminal laws to be sufficiently precise so that it is prospectively clear what conduct constitutes an offence. The principle seeks to prevent ill-defined and/or overly broad laws, which are open to arbitrary application and abuse, including to target particular groups on political or other unjustified grounds. The European Commission acknowledged concerns about clarity, foreseeability, and impact on lawful activities of the equivalent EU definition, but dismissed overall negative effects as “limited”, influenced heavily by member state perspectives – in contrast to the considerable concerns expressed by the EU’s own expert Fundamental Rights Agency.
Since the CoE’s membership (46 states) is larger and more politically and legally diverse than that of the EU (26 states), and there are fewer regional legal safeguards than in the EU, applying the definition throughout the CoE is susceptible to abuse by states that use counter-terrorism laws to target political dissent, civil society and the media, especially when applying CoE Convention ancillary terrorist offences of incitement and provocation.
A further problem with the CoE definition is that, although all physical acts must be committed “intentionally”, it is unclear whether many of the multi-pronged conduct elements in draft article 1(1)(a)-(j) must be intentional or are objective conduct elements. An example is whether an intentional attack on a specified object must also be intended to endanger human life or cause major economic loss, or whether it is enough that such consequences objectively occur. Across 46 legal systems such elements are likely be interpreted differently, resulting in higher or lower thresholds of liability as well as frustrating transnational cooperation.
Some of the physical acts also set liability for terrorism too low, namely articles 1(1)(a), (d), (f), (g), (h), (i) and (j). In accordance with best practice international standards, these should be limited to acts that cause death or serious personal injury.
The contextual requirement that an act “may seriously damage a country or an international organization” is welcome to limit terrorist offences to serious acts, although it sets the threshold too low by admitting the mere possibility of damage (“may”). Switzerland recommended replacing “may” with “in the ordinary course of events seriously damages” in order to require a higher likelihood of harm, ensuring terrorist liability is reserved for the most severe cases. The phrase “damage a country or international organization” is vague, lacking clarity on the nature (material or intangible) and scale of harm, such as whether it includes psychological impacts, political instability, or economic loss. It is unclear whether it requires damage to the whole country or if serious harm, even to a small part of it, is enough. The abstractness of terms like “fundamental structures” contributes to uncertainty by making it harder to distinguish terrorism from other offences (e.g. compelling a government or destabilizing structures). To uphold legal clarity and effectiveness, the chapeau should be more concrete and specific, ensuring it supplements rather than redundantly overlaps with other elements of the definition.
A final concern with the CoE definition is the need for additional exclusion clauses to prevent over-breadth in its application. The CoE Convention that the protocol would amend already properly excludes activities of armed forces during armed conflicts (article 26(5)), aligning with international humanitarian law. However, in European practice some states interpret this narrowly, applying it only to state military forces, while “armed forces” under international law includes organised non-state armed groups. Explicit clarification would be welcome.
An additional exclusion clause for the Convention as a whole is recommended to protect humanitarian and medical activities under humanitarian law, such as that found in (non-binding) recital 38 of the EU Directive 2017 and suggested to the CoE by Switzerland. A further clause should exclude acts of advocacy, protest, dissent or industrial action, which are not intended to cause death or serious personal injury, as is found in a number of national laws. Yet another clause should exclude resistance as a last resort against attempts to overturn a democratic, rights-based constitutional order, as suggested by the European Parliament; such a right is found in some national constitutions. Such exclusions aim to prevent over-reach, safeguard lawful activities, and reinforce compliance with human rights and humanitarian law.
The “Strasbourg effect” of CoE instruments can influence practice worldwide, as a bloc of 46 member states representing a quarter of the world’s states. Given its core mission to promote democracy, human rights and the rule of law, the CoE should not champion counter-terrorism standards that fall short of human rights law and best practice definitions. At the very least, member states should omit the “destabilizing fundamental structures” element when the Council of Europe soon considers adopting the amending protocol.
