COUNCIL OF EUROPE CONVENTION ON

THE PREVENTION OF TERRORISM

By
Mehula Liza Pallathu (1502)
Seventh Semester
National University of Advanced Legal Studies
 CERTIFICATION OF ORIGINALITY
I HEREBY CERTIFY THAT THIS IS MY ORIGINAL WORK
 INTRODUCTION
The Council of Europe Convention on the Prevention of Terrorism [CECPT] was opened
for signature in May 2005. It is the third multilateral counter-terrorism treaty to emerge in
the aftermath of terrorist attacks in the United States on the 11th of September 2001.
According to the Council, the CECPT aims “at covering some of the existing lacunae in
the international law and action against terrorism”.1 This expressed objective indicates
that the Convention does not by any means provide an overarching framework for the
prevention of terrorism in Europe. The CECPT is particularly noteworthy because its
principal focus is activities which are thought to facilitate and perhaps provoke or
produce terrorist acts and therefore are at least one step removed from activities such as
hijacking, and bombing, which have traditionally been the concern of binding
international law commitments in this field.
THE CECPT: GENERAL CONSIDERATIONS
BACKGROUND AND FOCUS
In the immediate aftermath of the terrorist attacks on the United States in 2001, the Council
of Europe established a specialist group of experts to review the operation of existing Council
of Europe international instruments applicable to the fight against terrorism to decide whether
they needed to be updated and to consider what future action the Council could usefully carry
out in the field of the fight against terrorism. The Committee decided to avoid the politically
charged issue of defining terrorism and creating a comprehensive convention instead agreed
to undertake work with the specific focus of agreeing a “limited-scope instrument or
instruments dealing with prevention of terrorism and covering existing lacunae international
law.”2 The CECPT is really all about the three offences it sets out to create, and that the
handful of other provisions in it relating to national prevention policies, protecting and
compensating victims, and providing spontaneous information.
SCOPE, STRUCTURE AND METHODOLOGY
In terms of its scope, the CECPT concentrates on “prevention”, and should do so in such
a way as to cover existing lacunae in international law. As regards the focus on
prevention, the CECPT’s principal provisions rely on drawing a conceptual distinction
between the prevention of terrorism on the one hand, and ‘terrorism’ itself on the other.

1
Council of Europe Legal Affairs Council of Europe Convention on the Prevention of Terrorism at
http://www.coe.int/T/E/Legal-affairs/Legal-co-operation/Fight-against-
terrorism/Convention%20summary.asp
2
CODEXTER 2nd Meeting para 62.
“Terrorism”, in the CECPT consists of criminal manifestations of terrorist acts
encapsulated in its use of the term ‘terrorist offence’. The principal operative provisions,
most especially the offences the CECPT creates, are concerned with “prevention” of
terrorism in so far as they are concerned with incitement, recruitment, and training, which
is behaviour which is prior to and enables, facilitates or leads to the commission of
“terrorist offences” as defined by the CECPT.
Article 1 provides that “terrorist offence” means any of the offences within the scope of
any of the 12 existing international counter-terrorist conventions. These conventions
address such matters as hijacking or endangering aircraft3 or ships4; taking hostages5;
attacking internationally protected persons6; using nuclear materials7 or bombs8; and
financing any of these activities9. The specific offences which the CECPT creates,
employ the concept of a “terrorist offence” as a central element of their definition.
Article 13 imposes an obligation to provide protection, compensation and support for
“victims of terrorism” rather than victims of “terrorist offences”. It is difficult to know
what Further, it is not entirely clear what the connection is between compensating and
supporting victims of “terrorism” and the prevention of “terrorism”, and therefore the
provisions on compensating victims are something of an anomaly. As far as the provision

3
See: Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14
September 1963; Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16
December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed
at Montreal on 23 September 1971; and Protocol on the Suppression of Unlawful Acts of Violence at Airports
Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, signed at Montreal on 24 February 1988.
4
See: Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at
Rome on 10 March 1988;and Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf, signed at Rome on 10 March 1988.
5
See International Convention against the Taking of Hostages, GA Res. 34/146, 17 December 1979.
6
See Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, GA Res. 3166/XXVIII, 14 December 1973.
7
See Convention on the Physical Protection of Nuclear Material, signed at Vienna on 3 March 1980. The
CECPT does not, for the time being, cover the International Convention for the Suppression of Acts of Nuclear
Terrorism, GA Res. 59/290, 13 April 2005, which is not yet in force.
8
See International Convention for the Suppression of Terrorist Bombings, GA Res. 52/174, 15 December 1997
9
See International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, 9 December
1999. Also included in the list of counter-terrorist conventions is the Convention on the Marking of Plastic
Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991. This convention establishes a
regime for regulating and monitoring the manufacture, movement and possession of plastic explosives. It does
not define any offences, nor does it expressly require parties to criminalise any specific activity.
concerning spontaneous information is concerned, this may well be logically connected
with the notion of “prevention of terrorism”.
However, Article 22, which enables the offering of such information, and provides a
framework for dealing with it when offered, makes no reference to “terrorist offences” or
“terrorism”. This provision’s inclusion in a binding instrument may well have been
necessary in order to authorise the provision of such information in respect of the matters
dealt with in the Convention. Nonetheless, the regime set out in the CECPT for the
provision of spontaneous information is not expressly connected with the other
substantive provisions of the Convention. Although one can see where it might be used in
connection with the offences which the CECPT creates, it seems not to be confined to the
provision of information about those offences.
Terrorist offence”, as defined, is both over and under inclusive. It is over inclusive
because, with the exception of the International Convention for the Suppression of
Financing of Terrorism, none of the offences falling within the scope of the other
conventions are defined in those conventions so that the prohibited acts must be carried
out with a “terrorist” motive. Therefore, the term “terrorist offence” as used in the
CECPT does not solely catch “terrorist” crimes or offenders. It also catches “ordinary”
criminals who carry out the acts falling within the scope of those conventions.
However, the approach is also under-inclusive. This is so because the acts falling within
the scope of those other conventions do not by any means cover the whole range of
dangerous acts which terrorists may commit.10
THE SUBSTANTIVE PENAL PROVISIONS
GENERAL ISSUES
The CECPT creates three offences: “Public provocation to commit a terrorist offence”;
“recruiting others to commit “terrorist offences”; and “training others to commit “terrorist
offences”. Like all of the counter-terrorist conventions, a party to the CECPT must ensure
that it can establish jurisdiction over these offences11 when committed in its territory, on
board a ship flying its flag, or an aircraft registered under its laws, or where the offence is
committed by one of its nationals. A party may also establish jurisdiction over these
offences when the offence was directed towards or resulted in the carrying out of a

10
M. Scharf ‘Defining Terrorism as the Peace Time Equivalent of War Crimes: A Case of Too much
Convergence Between International Humanitarian Law and International Criminal Law’ 7 ILSA J. Int’l &
Comp. L (2001) 391at p. 392. See also J. Trahan ‘Terrorism Conventions: Existing Gaps and Different
Approaches. 8 New Eng. J. In’l & Comp. Law (2002) 215
<http://www.nesl.edu/intljournal/vol8no2indx.cfm>
11
Art. 14.1 a to c, Council Of Europe Convention On The Prevention Of Terrorism.
“terrorist offence” in its territory or against one of its nationals, or a state or government
facility or diplomatic premises of that party abroad; or when the offence was directed
towards compelling the party to do or abstain from doing any act. A Party must also
establish jurisdiction over offences when an alleged offender is in its territory,12 and if it
does not extradite the individual, the party is obliged to prosecute him or her before its
competent authorities.13 The CECPT deems the offences it creates to be included as
extraditable offences in any existing extradition treaties between parties, and requires
parties to include these offences in any future extradition treaty negotiated between
them.14 It provides that the offences it creates are not to be regarded as political offences
for the purposes of extradition or the provision of mutual legal assistance. 15 All of the
above are now pretty standard fare as far as the existing counter-terrorist conventions are
concerned. The importance of these provisions lies in the fact that they operate so as to
ensure effective enforcement and prosecution of these offences regardless of where they
or their effects occur.
The CECPT provides that the offences it creates must be committed ‘intentionally’ and
‘unlawfully’. The stipulation that the offences be committed intentionally is
methodologically unexceptional, though its inclusion as a requirement for each offence
has specific consequences as we will see below.
The requirement that the offences be committed “unlawfully” has now become a common
feature of the counter-terrorism conventions, though it is not always clearly understood
and indeed its effect can be dependent on national or local factors, rather than on a shared
understanding of the precise limits of the concept in international law terms. From the
perspective of those drafting the CECPT the objective underlying the inclusion of the
provision is twofold. First it indicates that traditional criminal law defences are available.
Secondly it is included because it is envisaged that inciting terrorist offences, or
recruiting or training for them, might “be justified… also where other principles or
interests lead to the exclusion of criminal liability, for example for law enforcement
purposes.” It concedes a fairly free hand to Parties as to how they implement the concept
in their domestic law.
The CECPT made in the backdrop of the “War on Terror” and the human rights
violations happening in its name, there was a strong call for human right protections to be

12
Art. 14.3, Council Of Europe Convention On The Prevention Of Terrorism.
13
Art. 18, Council Of Europe Convention On The Prevention Of Terrorism.
14
Art. 19.1, Council Of Europe Convention On The Prevention Of Terrorism.
15
Art. 20, Council Of Europe Convention On The Prevention Of Terrorism.
put in place. Thus, the most notable in this regard is Article 12 which pertains specifically
to the criminal offences which the Convention creates. It requires that in establishing,
implementing and applying the offences, each party shall ensure that this is done “while
respecting human rights obligations, in particular the right to freedom of expression,
freedom of association, and freedom of religion, as set forth in” the ECHR (and/or, where
applicable, the ICCPR). Article 12.2 provides that the establishment, implementation and
application of the criminalisation provisions of the CECPT should “furthermore be
subject to the principle of proportionality with respect to the legitimate aims pursued and
to their necessity in a democratic society, and should exclude any forms of arbitrariness
or discriminatory or racist treatment.” Arguably these provisions should have some
significance in determining the substantive scope of the offences which the Convention
creates.
PUBLIC PROVOCATION TO COMMIT A ‘TERRORIST OFFENCE’
Article 5 of the CECPT defines the offence of public provocation to commit a terrorist
offence and obliges states to adopt such measures as are necessary to establish this
offence as a criminal offence in their domestic law when committed intentionally and
unlawfully. The offence is defined as:
the distribution or otherwise making available of a message to the public, with the
intent to incite the commission of a ‘terrorist offence’, where such conduct, whether
or not directly advocating terrorist offences, causes a danger that one or more
terrorist offences may be committed.
CODEXTER’s discussions were not confined to consideration of “incitement”
simpliciter. They also included consideration of whether “apologie du terrorisme” should
be criminalised. “Apologie du terrorisme”, has been defined as the “public expression of
praise, support or justification for terrorists and/or terrorist acts” and is referred to as
“glorification” of terrorism in English speaking countries. Thus, one may be direct
incitement while the other indirect incitement. The distinction between “direct” and
“indirect” incitement is familiar in international criminal law circles because incitement
to commit the international crime of genocide must be “direct and public.”16
Direct, as distinct from indirect incitement, has been explained by the International Law
Commission as “specifically urging another individual to take immediate criminal action
rather than making a vague or indirect suggestion. “Indirect” incitement may be said to
16
Convention on the Prevention and Punishment of the Crime of Genocide GA Res. 260/III 9 December
1948, Art. 3(c); and Rome Statute of the International Criminal Court A/CONF.183/9 of 17 July 1998,
Art. 25(3)(e).
involve forms of encouragement which do not involve directly urging that a specific
course of action be taken. Indirect incitement to commit terrorist offences might involve a
range of different types of speech which, though not directly urging that terrorist offences
be carried out, are capable in the context in which they are delivered of encouraging
individuals to carry out such acts, or might tend to have such effects.
In contrast to direct incitement, indirect incitement involves the potential for adopting a
much broader more holistic view of the message and its possible effects. An even broader
and more expansive view of indirect “incitement” might encompass messages “that
influence the beliefs or opinions of the audience as to the legitimacy of terrorist acts”, and
thereby “contribute to the creation of a social climate that may produce” such acts in the
future.17
In deciding how to approach the definition of the offence of incitement to
terrorism/”apologie du terrorisme”, CODEXTER was faced with a policy decision about
whether to criminalise direct incitement alone, or direct and indirect incitement, and if the
latter was to be criminalised whether it was to be so broad as to encompass speech which
might affect the social climate such as to provide potential for the commission of terrorist
offences at some point in the future. However, despite the reservations expressed earlier
in the process by some delegations, CODEXTER eventually agreed to frame an offence
which contemplated direct and indirect incitement.
RECRUITMENT FOR TERRORISM
Article 6 requires parties to criminalise what it calls “recruitment for terrorism”. This
means
“to solicit another person to commit or participate in the commission of a
terrorist offence or to join an association or group, for the purpose of
contributing to the commission of one or more terrorist offences by the
association or the group.”
The term solicit applies to both offences and the potential overlap with the notion of
“incitement” may well lead to confusion about the difference between these recruitment
offences and the public provocation offence. Strictly speaking there is little difference in
the legal or ordinary meaning of “solicit” and “incite”. Each is used in legal systems to
denote a form of instigation constituting encouragement or persuasion to commit a crime.

17
M. Gur-Arye “Can Freedom of Expression Survive Social Trauma: The Israeli Experience 13 Duke
Journal of Comparative and International Law (2003) 155
One distinction which may be drawn is that the public provocation offence must be
“public” whereas, on the face of it, the solicitation offence may be either public or
private.
Nonetheless, public provocation and solicitation offences were framed with different
objects in mind. Whereas the former seems mainly designed to criminalise the publication
of messages which encourage the world at large18 to commit terrorist offences, the latter
(which require the solicitation “of another”) seem to be aimed at focussed and directed
inducements/encouragements to an individual or individuals to commit or participate in
the commission of terrorist offences, or to join groups for the purposes of contributing to
the commission of such offences.
The public provocation offence expressly allows for “indirect” encouragement to commit
an offence. Article 8 of the CECPT provides that in respect of the offences it creates “it
shall not be necessary for the “terrorist offence” to be committed. So, the solicitee need
not even commence commission of or participation in the commission of a terrorist
offence, or embark on joining a group for the purposes of contributing to the commission
of such an offence. For the crime to be completed, all that is required is that “the recruiter
successfully approach the addressee.”19
On the basis of what we know and understand about the processes leading to the
radicalisation and recruitment of contemporary international terrorists these processes do
not take place in public. For this reason, the solicitation offences (and the training offence
set out in Article 7) are arguably likely to make a greater contribution to the legal fight
against terrorism than the public provocation offence, even though the latter is likely to
attract considerably more publicity and generate significantly greater controversy.
It should be noted, that the offence of soliciting another “to join an association or group,
for the purpose of contributing to the commission of one or more terrorist offences by the
association or the group” is aimed at the recruiter, and not at the person recruited.
Therefore, being a member of a or being recruited to commit a terrorist offence is not a
crime. A further difficulty with this aspect of the recruitment offence is that, on the face
of it, it requires that it be proven in each instance of solicitation of another to join an
association or group that the recruiter intends to recruit the recruitee for the purpose of

18
A publicly communicated message to a specific individual, or group of individuals would also be
encompassed by the public provocation offence. See, for example, the International Law Commission
Report of the International Law Commission on the Work of Its Forty-Eighth Session (6 May-26 July
1996) UN Doc. A/51/10 p. 26 para 16.
19
Explanatory Report to Council Of Europe Convention On The Prevention Of Terrorism para 108.
contributing to the commission of one or more terrorist offences. The Explanatory Report
provides that a party may choose to interpret the terms ‘association or group’ to mean
‘proscribed’ organisations or groups, in accordance with its national law and Parties can
so declare in accordance with the general principles of international law.”20
TRAINING FOR TERRORISM
Article 7 of the Convention provides that parties shall criminalise the provision of
“training for terrorism”. This means:
to provide instruction in the making or use of explosives, firearms or other
weapons or noxious or hazardous substances, or in specific methods or
techniques, for the purpose of carrying out or contributing to the commission of a
terrorist offence, knowing that the skills provided are intended to be used for this
purpose.
According to the Explanatory Report, CODEXTER saw the offences created here as
being similar to those set out in the International Convention for the Suppression of the
Financing of Terrorism. Whereas the financing convention criminalises the provision of
financial resources to or for terrorist purposes, Article 7 of the CECPT is said to
criminalise the provision of “know-how” for the same ends.21 Furthermore the specific
matters in respect of which the provision of instruction is mentioned – the use of
explosives, firearms or other weapons or noxious or hazardous substances– provide a
prima facie link with the facilitation of the commission of violent terrorist acts. Many of
the acts at which this measure is aimed would be capable of constituting offences of
complicity in the ordinary scheme of things. However, Article 8 CECPT provides that the
“terrorist offence” need not be committed. Therefore, one important feature is that it
requires states to define these activities as offences in their own right, without the
requirement for the terrorist offence aided, or abetted, to be committed. Thus, acts
preparatory to terrorism being criminalised. The offence set out in Article 7 only seeks to
catch the provision, rather than receipt of such instruction, and like the failure to address
membership of terrorist groups. It also covers the provision of instruction in “other
specific methods or techniques” for the purposes of carrying out or contributing to the
commission of a “terrorist offence”. Therefore, this measure seemingly calls on states to
criminalise the provision of any know-how whatsoever, for the purpose of carrying out or
contributing to a terrorist offence.

20
Id para 106.
21
Id para 114.