When the Multidisciplinary Group on International Action against Terrorism (GMT) of the Council of Europe began to consider the possible updating of the 1977 European Convention on the Suppression of Terrorism, it agreed that a number of principles should guide it, namely: the need to be realistic and pragmatic, to avoid overlapping with the work under way in other fora, to avoid the subjects on which it was obvious that it would not be possible to reach a consensus, to reflect the specificity of the Council of Europe in the fight against terrorism, and to retain the Convention's role as an instrument aimed at facilitating the extradition of terrorists through the "depolitisation" of terrorist offences.
Indeed, unlike many other counter-terrorist conventions, the 1977 Convention does not oblige States Parties to criminalize the offences defined therein, but provides that none of the offences in question shall be regarded as a political offence for the purposes of extradition. Therefore, while GMT agreed from the outset that it is necessary to introduce changes in this Convention in order to increase its effectiveness, it also agreed that it would not aim at changing the nature of the Convention.
The Convention is to be updated by means of an amending Protocol which, once adopted by the Ministers (possibly in the first part of 2003), will enter into force simultaneously for all parties to the Convention so that the problem of creating different treaty regimes for different States parties will be avoided.
With this in mind, the GMT has prepared a draft Protocol. Its main features are:
the list of offences to be "depoliticised" has been extended considerably to cover all the offences described in the relevant UN anti-terrorist Conventions and Protocols; similarly, the provisions on accessory crimes have been updated taking into account the latest developments in the UN;
the introduction of a simplified amendment procedure, which will allow new offences to be added to the list in the future, as well as a general amendment procedure so that future revisions do not necessarily have to be in the form of an amending Protocol;
the Convention has been opened to accession by the observers to the Council of Europe. The Committee of Ministers may decide on a case-by-case basis to invite other states to join the Convention as well.
While the Convention as such does not deal directly with general issues of extradition apart from the political offence ground for refusal the classical discrimination clause (which is a necessary corollary to depolitisation) has been expanded to include a clause authorising the refusal to extradite to a country where there is a risk of applying a death sentence, or a risk of being subject to torture or life imprisonment without parole.
One of the most difficult questions confronting the GMT was the reservation regime. The Convention allows reservations in respect of the core obligation that the offences listed contained therein cannot be regarded as political offences for the purposes of extradition. Taking into account the positions of all States, a middle ground solution was reached regarding this provision, based on a compromise which includes four elements:
the possibility of making a reservation concerning political offences is retained, but it is limited to present States parties. When making such a reservation, a State Party will have to indicate the offences to which it applies;
reservations will be valid for three years, after which they may be renewed for a period of the same duration. Renewal requires a notification from the State Party concerned;
the obligation to "extradite or prosecute" has been strengthened so that whenever a State party refuses extradition on the basis of a reservation, it will have to submit the case to its competent authorities for the purpose of prosecution, and communicate the final outcome of the proceedings to the Council of Europe;
an active follow-up is set up so that the requesting State may take the issue of refusal to a follow-up committee and eventually to the Committee of Ministers which may issue a declaration on whether the refusal to extradite was in conformity with the Convention.
Thus, the Protocol provides for a follow-up mechanism in charge of implementing the new procedure in relation to reservations as well as other tasks related to the follow-up of the Convention. This mechanism will operate in addition to the classic and more general competence of the European Committee on Crime Problems (CDPC) in relation to European Conventions in the criminal field, and in line with the decisions taken by the Committee of Ministers at its 110th ministerial session and by the Parliamentary Assembly of the Council of Europe.