Summary & Conclusions

Transcription

1 European Union Launch of the five-year UNODC Initiative on Criminal Justice Responses to Foreign Terrorist Fighters ( ) First Regional Conference: Foreign Terrorist Fighters : Threat Assessment and Identification of Key Issues and Challenges in the National Legislative Frameworks Valletta, Malta March 2015 Summary & Conclusions In cooperation with the Counter- Terrorism Committee Executive Directorate (CTED), the International Institute for Justice and the Rule of Law (IIJ), and the Parliamentary Assembly of the Mediterranean (PAM)

2 2 Introduction This report summarises the discussions and policy recommendations of the UNODC First Regional Conference on Foreign Terrorist Fighters: Threat Assessment and Identification of Key Issues and Challenges in the National Legislative Frameworks, organised by the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime (UNODC/TPB) to launch its five-year initiative on Criminal Justice Responses to Foreign Terrorist Fighters (FTF), from 23 to 25 March 2015 in Valletta, Malta, in cooperation with the Counter-Terrorism Committee Executive Directorate (CTED), the Parliamentary Assembly of the Mediterranean (PAM) and the International Institute for Justice and the Rule of Law (IIJ). Over the course of the three-day Conference, senior criminal justice and law enforcement officers from 20 countries, as well as experts and representatives from 10 international and regional organizations and partner entities, analysed the threat and identified the key issues and challenges posed by the FTF phenomenon in the national legislative frameworks. This report provides an overview of the issues discussed at the Conference through a general summary of each session s presentations, deliberations and specific recommendations. The Conference was structured around the following five pillars, reflecting the five-theme structure of the initiative: Threat analysis and legal and operational overview The international legal framework Adaptation of the procedural and legal framework Adaptation of investigation techniques Adaptation of regional and international cooperation mechanisms

3 3 Session 1 The threat related to the foreign terrorist fighters phenomenon: overview and main legal and operational challenges With an estimated FTF currently fighting for the Islamic State in Iraq and the Levant (ISIL), out of which 4000 are suspected of being European passport-holders, participants agreed that the FTF phenomenon represents the greatest regional and global threat that governments are currently facing. It was recognised that FTFs represent an acute and fast-growing challenge that has significantly evolved in recent years. FTF increase the intensity, duration and intractability of conflicts, and may also pose a threat to their States of origin, the States they transit and the States to which they travel, as well as States neighbouring conflict zones. As many participants noted, both the causes of the FTF phenomenon and the challenges posed to criminal justice systems are unique and complicated to analyse, depending on the regions, groups and individuals involved. Although terrorist groups, such as ISIL, rely on grassroots support from local communities, recruitment and radicalization of FTF are facilitated by globalization, the Internet and excellent media communication. The progression from initial interest to radicalization, commitment and eventual involvement in terrorist activities has accelerated at an exponential rate. Contrary to Al- Qaida, where membership is based on a sponsorship system, anyone can join ISIL and thus become an FTF. Importance of having access to information on FTF and especially on returnees and making a thorough analysis of the risk and the phenomenon at the national, regional and international levels. Necessity for further analysing the phenomenon, building upon the 1267 Monitoring Team s reports and the CTITF study under preparation, in order to better understand the causes and develop targeted response strategies. Need for full complementarity of initiatives and programmes and technical assistance on criminal justice responses, including through the recollection of legislative practices and legal cases was raised. Session 2 Applicable international law Although no international legal instrument currently addresses the FTF issue specifically, the phenomenon is not ignored by international law, which contains several relevant instruments, such as United Nations Security Council Resolutions (UNSCR) 2170 and 2178 (2014) adopted under Chapter VII of the United Nations Charter. UNSCR 1373 (2001) and 2178 (2014) provide a framework based on which to enhance the criminal justice response to the FTF threat. Accordingly, it is important to assess whether States can use existing legal frameworks, or if national legislations need to be refined or enacted. While

4 4 UNSCR 1373 (2001) requires States to criminalise the financing, planning, preparation and/or perpetration of terrorist acts and support for terrorist acts, UNSCR 2178 (2014) is more targeted at FTF, providing an international definition for FTF ( individuals who travel to a State other than their State of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict ) and requesting States to adopt necessary legal measures to criminalise the travel of FTF to States other than their State of residence or nationality, for the purpose of committing terrorist acts. Likewise, the 19 universal legal instruments against terrorism (such as the International Convention against the taking of Hostages (1979), the International Convention for the Suppression of Terrorist Bombing (1997), and the International Convention against the Financing of Terrorism (1999)) set forth very useful legal tools and mechanisms relevant to the matter. Importance of a full effective and coordinated implementation of UNSCR 1373, 1624, 2170 and 2178 and related counter-terrorism resolutions, as well as the 19 international instruments against terrorism. Need for States to provide a set of offences allowing the prosecution and punishment of all terrorist behaviours susceptible of being characterised as related to the FTF framework, in accordance with the applicable international legal framework. In this line, comprehensive analysis of existing domestic legal frameworks shall be carried out to ensure compliance with the applicable international legal framework and promote refinements of national legislation, whereas needed. Session 3 The challenges with regards to the implementation of the Al-Qaida Sanctions Regime (UNSCR ) The asset freeze, travel ban and arms embargo requirements of the Al-Qaida Sanctions Regime, adopted by the UNSCR 1267 (1999) and subsequent related resolutions (including resolutions 1989 (2011) and 2161 (2014)), apply to ISIL, ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida. Member States, in particular those most directly affected by the threat from ISIL and ANF, are encouraged to propose listings to the Al-Qaida Committee, under the sanctions regime, of key individuals and entities, including facilitators of FTF recruitment networks, key logisticians or propagandists or financiers. In this context the important role and missions of the Office of the Ombudsperson of the Security Council's Al-Qaida Sanctions Committee was recalled. Individuals, groups, undertakings or entities seeking to be removed from the Security Council s Al-Qaida Sanctions Committee List can submit their request for delisting to the Ombudsperson. From the beginning, or at least after the significant additions to the list after 11/09/2001, the regime has indeed attracted critical comment and political complaint to the Security Council focused on the lack of transparency as to the basis for identifying and listing individuals and entities and the absence of due process. Increasingly, the sanctions as implemented in states have been at the root of judicial challenges in various domestic jurisdictions. While the actual findings have varied, the courts have been uniform in their criticisms as to the lack of due process accorded to individuals and entities subject to these significant sanctions. In this context,

5 5 the Office of the Ombudsperson has been created to provide an independent avenue through which requests for delisting could be presented to the Committee. The Ombudsperson plays a key role - both procedural and substantive - in the assessment of the delisting request. Although many challenges remains to be faced with, the creation the Office of the Ombudsperson marked a significant step forward in terms of due process in the context of the 1267 procedure. Importance to consider listing of key individuals associated with Al-Qaida, pursuant to the Al-Qaida Sanctions Regime. Exigency to ensure respect of fair process principles in the listing of individuals under the Al-Qaida Sanctions Regime. Sessions 4 & 5 The development of a specific substantive criminal law In prosecuting cases against FTF, States have relied primarily on existing legislation dealing with organised crime, immigration or terrorist offences in their criminal law, amongst others. However, the criminal offences most commonly used by criminal justice practitioners may prove inadequate to address the FTF phenomenon. In this regard, it is important to question the necessity of adapting the substantive criminal law, by reinforcing its preventive purpose, especially through the use of specific offences as part of a criminal justice preventative strategy, and criminalization of preparatory acts such as: criminal association in connection with a terrorist organisation, individual terrorist action, training and recruitment of FTF, particularly on the Internet, glorification of terrorism, and provocation and incitement to commit terrorist acts. Several States have begun legislative processes in view of amending their laws in order to develop specific legal tools to address the FTF phenomenon. An important tool to address the threat is the prosecution of preparatory acts and preventive offences committed before travel, including the fabrication of fake travel documents, participating in training, as well as the incitement and glorification of terrorist acts. Several European and MENA countries are currently in the process of adopting new criminal laws to criminalise individuals willing to leave the country to travel to areas where terrorist groups are operating. Some countries considered that it was necessary to adopt new offences criminalising terrorists acting alone to enable the criminal justice system to intervene against stand-alone terrorists. Given the relative novelty of this judicial phenomenon, FTF case-law has not yet been developed by the international and regional courts, notably by the European Court of Human Rights (ECHR). However, related ECHR case-law on incitement to hate, incitement to violence, negationist statements and dissolution of anti-democratic political parties are of particular relevance in the development of substantive criminal law specific to the FTF phenomenon, in compliance with the Rule of Law, human rights and fundamental freedoms. In a number of cases presented during the session, ECHR found that States had sometimes violated one or more human rights or fundamental freedoms in prosecuting one of the above-mentioned crimes. How States respond to the dissemination of material on the Internet calling for terrorist action or what measures they decide to implement in order to authorise the closure of such sites will have to be considered with similar sensitivity and in compliance with human rights guarantees. ECHR has not yet declared anything regarding the compatibility of these prohibitive measures against terrorist websites. An essential element regarding the sentencing of terrorist acts is the proportionality of the sanction to the offence. The issue of clarity and predictability of criminal

6 6 law, as well as the principles of accessibility and legality, are also considered to be of vital importance with regard to measures aimed at tackling the spread of violent discourse. All speakers stressed the need for a balance to be found between preventing terrorist acts and respecting fundamental freedoms. For instance, criminalizing the incitement to terrorism will raise the issue of preserving the right to freedom of opinion and expression, or the right to freedom of thought, conscience and religion, since these can be impacted by incitement offences. Similarly, criminalizing recruitment for membership in a terrorist group could affect the guarantees relating to freedom of association. These two examples highlight the critical balance to be made, at the time of establishing the constituent elements of a separate preparatory offence, between preserving the person s fundamental rights and the need to act before a terrorist act is committed. A preventive strategy in criminal law is still possible on condition that efficient safeguards are introduced in the formulation of offences to avoid criminalizing protected acts. Strong need to refine legislation in order to introduce new offences specifically related to FTF and evaluate their impact. Importance to ensure the criminalization and prosecution of: participation (individual or group conspiracy/ association de malfaiteurs ), stand-alone terrorists, preparatory acts, recruitment, training (active and passive), facilitation and financing of FTF travel, and incitement to violent extremism or terrorism. Importance to focus further on the challenges posed by the investigations and prosecutions, especially on the collection of evidence. Necessity for the establishment of a means of checks and balances to ensure Rule of Law-compliant criminalization (principle of strict legality). Sessions 6 & 7 The development of a specific criminal procedure, administrative measures and sanctions In order to prevent the phenomenon of FTF flows towards violent conflict areas in a global and consistent manner, criminal procedure rules must be adapted and consideration should be given for them to be completed by efficient administrative measures (such as the seizure/withdrawal/non-renewal of identity and travel documents, travel ban, dissolution and freezing of assets and economic resources of associations or undertakings facilitating departures, opposition to the exit of minors of the territory, etc.) in order to prevent departures and control the return of suspected individuals, with full respect for human rights and the rule-of-law standards. Several national experiences were presented during this session. Several Member States are in the process of implementing new innovative legal tools including control and surveillance systems for returnees, specific measures concerning the departure of minors, expansion of the list of offences leading to Terrorist Screening and Interdiction

7 7 Programmes (TSI), and expansion of possibilities to reject visas for people susceptible of causing trouble or posing a threat to public order or to withdraw nationality. The issue of border management, which causes difficulties due to the distances involved, was also raised as an important concern. Despite the fact that the FTF phenomenon poses a global threat, on the whole, it appeared that States have not yet coordinated enough their law enforcement and border control approaches. It was unanimously recommended that, in order to dismantle FTF channels, States should devote more attention to the financing of FTF travel from the outset of the investigation, given that it allows investigating officials to detect the relevant networks involved. Relevant international and regional instruments, such as the 2002 European Union Framework Decision (amended in 2008), which contains a definition of terrorism and minimum standards for both procedure and substance, were discussed as well as possible ways for improvement. Reference was also made to ongoing negotiations within the Council of Europe on the adoption of the Additional Protocol to the Convention on the Prevention of Terrorism, in line with UNSCR Concerning administrative measures, the importance of uniformed types of controls and common databases, as well as an autonomous sanctions regime with listings were recalled. Several Member States informed that draft laws were currently being discussed to make it possible to withdraw passports and identity documents under judicial supervision, even on short notice. Issues of dual-citizenship with regard to passport confiscation measures and women FTFs were also raised. Urgent need for effective and innovative administrative measures to prevent and detect the travel of FTFs, particularly regarding the issue and withdrawal of visas and travel documents. The emphasis must be put on rule of law compliant mechanisms to prohibit travel, including through possible listing of key individuals or entities, in accordance with the Al-Qaida Sanctions Regime. Necessity for advanced cooperation and sharing of information, as well as for implementation of the border control provisions set forth in UNSCR Overall need to assess the effectiveness of these measures and their impact on fundamental freedoms. Administrative measures that restrict or limit the exercise of fundamental freedoms must be subject to specific supervision in order to ensure their conformity with constitutional and treaty requirements applicable under the Rule of Law. Importance of the development and implementation of special policy measures directed at vulnerable groups, including women and minors. Exigency for States to implement measures, including criminal justice measures, that could facilitate the successful rehabilitation and reintegration of returnees. Need for further attention to surveillance (both prior to travel and for returnees) and pre-sentencing measures.

8 8 Session 8 The implementation of a specific operational response (I) The challenges of using intelligence within a judicial framework The growing and unprecedented number of individuals involved in terrorist activities related to the FTF phenomenon also constitutes an increased operational challenge for intelligence services. This makes it necessary to strengthen the coordination of their action with the action of investigation and judicial services, and more generally with the coordination of all relevant public and private operators. The initial step of producing admissible evidence against FTF is a complex challenge in itself, in particular when it comes to individuals planning to join a terrorist group. The challenge of converting intelligence, in particular, into admissible evidence upon which the prosecutor can rely is considered to be even more problematic. Participants noted that it is particularly challenging to use obtained intelligence in court without exposing intelligence service officers, their sources and their methods of collection. Another challenge that intelligence agencies and law enforcement/prosecution services face is how to prove the intent of the act of terrorism before the individual s departure. Some individuals claim to be travelling to provide humanitarian aid in the conflict zone, while others may simply be joining their family. In actual fact, the dispersed structure of terrorist organisations often makes the link between the individual and the organisation extremely fragile. Urgent need to intensify and accelerate the exchange of operational information through improved inter-institutional coordination. Necessity for States and relevant organisations to establish mechanisms for sharing information and allowing quick exchanges between intelligence/security agencies and law enforcement/prosecution services responsible for combating terrorism. Importance to consider establishing mechanisms, including legislative, to allow the use of intelligence as admissible evidence, in accordance with the principles of the Rule of Law and guaranteeing the protection of intelligence service officers, their sources (e.g. anonymizing witnesses identities) and their methods of collection. Session 9 The implementation of a specific operational response (II) Technical and procedural challenges regarding the use of electronic communication networks by terrorist groups Electronic communication networks, particularly the Internet and social media, are intensively exploited by terrorist groups attracting FTF to facilitate, prepare and carry out their operations.

9 9 Moreover, they play a key role in their propaganda and recruitment strategy. In this regard, it is important to speed up the efforts undertaken at the national and international levels in order to efficiently prevent the diversion of these networks for terrorist purposes. Information collected from social media websites can also prove very useful to track the activity of FTFs in conflict zones and provide potentially invaluable evidence for future prosecutions. Terrorist activity on the Internet has nonetheless evolved in recent years. Terrorist groups have migrated from online closed forums to open social networks and community websites, such as Facebook and YouTube. Terrorist organisations, such as ISIL, have also started to publish very professional propaganda videos, in several languages and adapted to different audiences according to the country. Combating the use of electronic communication networks by terrorist groups can only be done through strict cooperation with private companies in the relevant sector. Finding a balance between blockage/removal of content and preserving useful sources of information is also an important exercise for law enforcement officials. Several national experiences were debated. Some States put in place special units to address this issue. One of the main challenges is that the majority of electronic material to be removed from the Internet comes from outside national borders, which makes the international aspect of the use of electronic communication networks by terrorist groups very significant. The use of developed search engines with help from professionals in the sector to scan the Internet for terrorist material and the use of online platforms designed to allow the public to report illegal terrorist content were discussed. Need to set up appropriate legal frameworks and specific methods in order to increase the effectiveness of counter-terrorism measures within electronic communication networks. Importance for States to consider establishing dedicated units and mechanisms for appropriate and strengthened cooperation with the private sector. Useful measures should be implemented in order to allow the removal and/or blocking of terrorist content available on the Internet, namely by developing public-private partnerships, especially with Internet companies, and by seeking the active participation of Internet users (in the implementation of an online reporting system for illegal content for instance). Critical need for mechanisms for fast cooperation with foreign jurisdictions, especially on a peer-to-peer or direct cooperation basis. Session 10 The challenges related to the new financial channels of terrorist groups Active terrorist groups in Syria, Iraq and Libya have established particularly efficient and diversified financial channels, from which they draw considerable resources. FTF travel to destination countries is now significantly more organized and is often supported by financial

10 10 networks. This phenomenon now requires all public and private stakeholders to implement a comprehensive, coherent and innovative action, at the national and regional levels. ISIL finances itself from the inside, through taxes imposed on civilians, petrol sales, ransoms for hostages, voluntary contribution, and therefore does not depend on financing from the outside. Similarly for weapons, they supply themselves internally. That which makes ISIL particularly efficient in its funding, and therefore very dangerous, is the fact that they do no depend on only one source of funding, but on a diversity of sources. The response is therefore a lot more difficult to organize. Another uniqueness is that ISIL has a very high rate of FTF turnover. Some participants stated that, for the most part, FTFs bring their personal funds with them when they leave for destination countries or create funds through traditional illegal avenues, as mentioned above. Financial investigations are complementary to investigations into terrorist acts; the two types of investigation reinforce one another. It is therefore crucial to note the importance of conducting financial investigations in order to disrupt and identify terrorists, as well as break links. The use of financial sources can also allow the gain of operational leads in counter-terrorism efforts. Terrorist groups have very diversified sources of funding, but they are also very vulnerable. This includes localised financial methods, high financial turnover, links with organized crime and engaging in criminal activities. There are financial coordination mechanisms in terrorist organisations. Necessity for States carefully analyse the channels and methods of financing to spot vulnerabilities in order to dismantle them. Crucial need to understand the financial profile of the terrorist organisations, identify critical vulnerabilities and develop integrated disruption strategies in partnership operations. Importance of starting financial investigations from the outset of the overall investigation in order to track and dismantle the delivery networks which facilitate FTF departures. Session 11 A renewed regional and international cooperation Participants agreed that strengthening international cooperation at all levels is critical in order to successfully address the FTF phenomenon. Given that laws tackling terrorism are constantly being changed and adapted to address this evolving threat, cooperation in these matters can be a challenge. Furthermore, the increasing number of police and judicial investigations related to the massive departures of violent extremism candidates represents a major challenge to practitioners and requires the development of new practices in order to make interstate cooperation much faster and more efficient. Harmonising a clear legislative framework to combat terrorism and intensifying exchange of information are ways in which states can strive to overcome these challenges. In general, it is very difficult, if not impossible, to pursue mutual legal assistance with destination countries and directly gather evidence on the ground in conflict zones. Therefore, prosecutors

11 11 have to rely on other sources of information and evidence in order to compensate for these obstacles. Talking to witnesses in their own country, including friends, family and neighbours of FTF, legally intercepting private communications and collecting information from computers and mobile devices are a number of ways to overcome the potential hurdle to international cooperation with destination countries. International and regional institutions, like Interpol, Europol, Eurojust and the League of Arab States, play an important role in the facilitation of cooperation and support, particularly through the focal points in terrorist matters and data-bases. Given the transnational nature of the threat, critical need for full operational and judicial cooperation at all levels and during each phase of the criminal justice response: intelligence, investigation, prosecution, adjudication and enforcement of sentences. Necessity for complementary to the conventional instruments related to international mutual assistance in criminal matters, practical arrangements for exchange of information and cooperation between practitioners should be encouraged in order to increase the effectiveness and rapidity of the response. Strong need to establish dedicated task forces at the regional and international levels, as well as informal networking. Need for improved international, regional and sub-regional cooperation, through bilateral agreements, increased sharing of information, the sharing and adoption of best practices and improved understanding of the FTF phenomenon. Follow up actions Participants expressed the wish that the UNODC and its partners continue implementing specialized training activities aimed at strengthening the capacity of counter-terrorism practitioners at the national, regional and international levels. UNODC/TPB will begin the delivery of capacity-building and technical assistance activities at the national level, focusing on each of the five thematic pillars, starting with legislative refinements, as of September The next regional seminar under the first phase of this initiative to take place in Valletta, Malta, at the end of October 2015, in cooperation with relevant partners (CTED, PAM and IIJ). The First UNODC/TPB Regional Conference for Parliamentarians on FTF will be held on 8-9 October 2015, in Bucharest, Romania, in cooperation with the PAM. The meeting will focus on discussion and identification of national and regional strategies and approaches for effective criminal justice responses to preventive offences related to FTF (such as incitement, training and recruitment for terrorist purposes) in line with international standards and rule of law. Conference documents are available on the UNODC Online Counter-terrorism Learning Platform (