Security Council receives report on challenges-and solutions-in prosecuting foreign terrorist fighters Counter-Terrorism Committe

BMUSONI — Mon, 16 Mar 2015 16:03:00 +0000

In adopting resolution 2178 (2014) on 24 September 2014, the Security Council delivered a clear message: Member States and the international community must take active measures to address the threat posed by foreign terrorist fighters (FTFs). According to this resolution, “all States shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense.” In the practical implementation of these measures, however, prosecutors from around the world are facing significant challenges. As terrorism is a unique and evolving crime, cases related to this type of offence pose questions about the collection of admissible evidence and successful prosecution. In an effort to share these experiences – and identify possible remedies to these challenges – the Security Council Counter-Terrorism Committee Executive Directorate (CTED) gathered prosecutors from various regions and legal systems in Valletta, Malta, 15-17 December 2014. A report just adopted by the Security Council (S/2015/123) summarizes the discussions and broad conclusions of these deliberations.

The report notes that although the phenomenon of foreign terrorist fighters is not new, it is unprecedented in terms of numbers, timeline, and impact, as well as closely related to the recently increasing incidence of terrorists acting alone or in small cells. Whereas some Member States have specific terrorism-related legislation in place to prosecute a broad range of terrorist acts, many countries rely on other offences, including legislation pertaining to fighting organized crime, or criminal code provisions prohibiting the change of the constitutional system by non-democratic means. Other types of legislation employed relate to immigration law offences to prevent individuals from travelling, provisions on threats to national security, or financial crimes committed prior to departure.

Relying on existing legislation can present its own set of challenges, however; courts can be unwilling to accept such innovative interpretation by the prosecution, or provisions used include different acts and intentions as basis for conviction and require different elements of proof. It can therefore complicate international legal cooperation, raising issues related to dual criminality or because the violation falls under exclusion clauses in extradition treaties, such as political offences.

Another topic that generated much discussion among prosecutors, according to the report, was how to obtain admissible evidence. This challenge can be related to the conversion of intelligence into evidence, the question of generating or capturing evidence from social media sources, or of how to prove the intent of committing an act of terrorism, for example. Other complicating factors include the claim by many individuals that the purpose of their travel is to provide humanitarian aid in destination countries, the diffuse structure of terrorist networks, which often makes the link between the individual planning to travel and the organisation tenuous, and the fact that many accused are youth without any criminal association, raising the question of rehabilitation, reintegration, and the impact of prosecutions.

In the concluding observations of the report, it is highlighted that lacking specific terrorism-related laws it is possible to apply existing legislation, with the prosecution mobilising various forms of cooperation and stressing the need to be practical. Underscoring the essential role of respect for the rule of law in effective counter-terrorism measures, including human rights, prosecutors concluded that the way their cases are conducted should never play into terrorists’ propaganda.

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Malta seminar examines challenges in prosecution of FTFs

BMUSONI — Fri, 26 Dec 2014 22:29:00 +0000

The prosecution of foreign terrorist fighters (FTFs) presents major challenges that may require the introduction of new legislation, CTED told a recent gathering of experts in Malta.

“The foreign terrorist fighters phenomenon is not new, but its current scope is unprecedented. It is therefore essential to mobilize all relevant resources to address this phenomenon”, said CTED Chief of Section Ahmed Seif El-Dawla.

Security Council resolution 2178 (2014), adopted in September, requires Member States to have adequate legal measures to address the FTF phenomenon.

“Compliance with some of these new obligations may require new laws, but several may be addressed through existing legal and practical measures. Therefore, it is important to know what can be done with the measures which are already at our disposal”, Mr. El-Dawla added.

The seminar was held in Valletta from 15 to 17 December 2014 by CTED and the Malta-based International Institute for Justice and the Rule of Law. The sixth in a series of seminars on “Bringing Terrorists to Justice” targeted at prosecutors with experience in handling terrorist cases, it was attended by the Attorney-General of Malta, as well as by around 40 prosecutors and judges from various regions of the world and representatives of international, regional and subregional organizations.

Participants discussed trends and challenges in the prosecution of cases involving FTFs, with respect in particular to the range of possible offences, the collection and availability of admissible evidence, and the applicability of the preventive offences addressed by resolution 2178 (2014). Adopted under Chapter VII of the UN Charter, the resolution requires Member States to ensure that their legal and judicial system have the ability to prosecute and penalize their nationals who travel or attempt to travel for the purpose of the perpetration, planning or preparation of terrorist acts, or the providing or receiving of terrorist training.

Seminar participants shared their experiences on how best to prosecute preventive offences related to foreign terrorist fighters and the type of offences and charges used for the prosecution of FTF cases. The discussions also focused on the main types of evidence used in the prosecution of FTF cases and the main obstacles and opportunities in gathering evidence in such cases. Participants also recalled that all measures against terrorism, and in particular those targeting FTFs that may limit the exercise of fundamental freedoms such as the freedom of speech, should be employed only for a legitimate purpose and must comply with the principles of necessity and proportionality.

“Among the challenges identified, and which would need to be addressed by the Institute in the future, is acquiring and admitting information technology evidence into cases of foreign terrorist fighters,’ noted the Institute’s Executive Director Robert Strang.

The seminar was funded by the U.S. Government as part of the CTED global initiative for prosecutors on “Bringing Terrorists to Justice” in accordance with Security Council resolution 1373 (2001). CTED plans to facilitate a series of further FTF-related activities over the coming months, in close cooperation with the Institute, the CTITF, UNODC and the EU.

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Security Council - Counter-Terrorism Committee (CTC) - malta

Security Council receives report on challenges-and solutions-in prosecuting foreign terrorist fighters Counter-Terrorism Committe

Malta seminar examines challenges in prosecution of FTFs