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Home Archive for category "Terrorism" (Page 5)

Crocodile Tears: The UK Supreme Court’s Broad Definition of Terrorism in R. v Mohammed Gul

Published on November 18, 2013        Author: 

Antonio Coco - PictureAntonio Coco is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

 

On 25 October 2013, in its judgment in the R v Mohammed Gul case, the Supreme Court of the United Kingdom tackled two important issues: the definition of terrorism in times of armed conflict and the relationship between domestic legislation and international rules criminalizing certain behaviours. On both issues, the judgment is rather unsatisfying and may be considered a step back from the stand previously taken by the Court of Appeal in the same case (upon which I commented in the Journal of International Criminal Justice, vol. 11(2), 2013, pp. 425-440, some time ago; see also the excellent post by Kimberley Trapp here on EJIL:Talk!). In particular, the Supreme Court found the terrorism definition in UK law to be both unwise and undesirable but then relied on it to confirm the defendant’s conviction.

The defendant, a law student of British nationality, was accused of having disseminated terrorist publications, an offence under Section 2(3) of the UK Terrorism Act 2006. Actually, his conduct consisted in uploading onto the Internet, and particularly on Youtube, videos of attacks against military targets in Chechnya, Iran and Afghanistan. The videos were accompanied by prayers and praises for the attackers. One legal element of the offence is that the publication – in this case the videos – concerns actual terrorist attacks. The bone of contention here, then, is whether attacks against military targets in the context of non-international armed conflicts (NIACs) can be labelled as terrorist attacks.

The definition of terrorism in UK legislation is contained in Section 1 of the Terrorism Act 2000. It basically foresees three requirements: (1) an act or threat which involves serious violence or danger to the life of persons, serious damage to property, or serious interference with or disruption of electronic systems; (2) the “purpose of advancing a political, religious, racial or ideological cause”; and (3) the fact that the act or threat is “designed to influence the government or an international governmental organization, or to intimidate the public or a section of the public”. The act or threat need not to be designed to influence a government or an international organization or to intimidate the public when it involves the use of firearms or explosives. This means that any threat or use of firearms or explosives motivated by a political or ideological cause is an act of terrorism, as long as it involves serious danger to persons or serious damage to property and regardless of its purpose.

The definition is practically very broad (as recently noted by K.J. Heller). It seems to label as terrorist most acts of warfare in a NIAC, regardless of whether they are lawful or unlawful under International Humanitarian Law (IHL) and whether they are carried out by the armed forces of a State or by a non-State armed group. Indeed, most hostile acts in an armed conflict are likely to cause serious violence to persons or serious damage to property, and all of them are motivated by a political or ideological cause. Arguably, any hostile act in an armed conflict is designed to influence a government or involves the use of firearms or explosives. According to this definition, every person embracing weapons in a NIAC is considered a terrorist. The Prosecution in the Gul case argued that such a wide definition is counterbalanced by the requirement that prosecutions for terrorism are authorized by the Director of Public Prosecution if the activity occurred in the UK, or by the Attorney General if it occurred abroad, thus ensuring that criminal charges are formulated only in the appropriate cases (§ 30). This contention, far from solving the problem, seems to raise even more concerns, as I shall explain below. Read the rest of this entry…

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Convicted CIA Agent Seeks Pardon from Italian President

Published on September 13, 2013        Author: 

Mr Robert Seldon Lady, one of the CIA agents convicted in absentia in Italy for their involvement in the abduction/rendition of Abu Omar, has petitioned the President of Italy for pardon. The letter is available here, and is a fascinating read (not least because the guy’s (real?) last name is Lady, his middle name reminds me of one of my favourite sci-fi characters, and we can actually see a copy of a CIA agent’s passport). He supports his request with a number of arguments: that he could not properly defend himself as that would require the unauthorized disclosure of classified information; that he was acting under orders and with legal advice that his actions were lawful; and perhaps most interestingly that Italy itself is invoking before Indian courts the functional immunity of its agents who killed a couple of Indian fishermen, essentially asking Italy to apply the same theory on immunity at home that it wishes to apply abroad.

Indeed, earlier this year the Italian president had pardoned US Air Force Colonel Joseph Romano, the only non-CIA employee who was convicted in the Abu Omar affair (BBC News article). From what I can tell the President’s official decision to pardon Romano is not available online, but the presidency press release is available here in Italian. The President invoked inter alia the change in US policy by the Obama administration, the purpose for which Romano was acting in the context of the 9/11 attacks, and the changed normative situation in Italy in respect of immunity regarding crimes committed on Italian soil by NATO troops. We’ll see whether the President will treat Mr Lady in the same way, but if he does it would be hard to see why any of the other 21 CIA agents should not receive pardons as well.

For more background and our earlier coverage, see in particular this post by Francesco Messineo and his JICJ article cited therein, as well as these posts by Dapo on the immunity of the CIA agents, and the posts on the Indian affair by Douglas Guilfoyle and Hari Sankar.

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Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

Published on July 19, 2013        Author: 

I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). Read the rest of this entry…

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On AG Bot’s Opinion in Kadi (IV)

Published on May 31, 2013        Author: 

Dr. Asier Garrido Muñoz is Assistant Professor of Public International Law (University of Salamanca). He has recently published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant lo Blanch, Valencia, 2013 here).

After Nada v. Switzerland (ECtHR) and Parliament v. Council, AG Bot has added new grounds to the debate on anti-terror lists with his opinion delivered on 19 March 2013 in the Kadi (IV) case (available here). The case has its origin in an appeal filed by the Commission, the Council and the United Kingdom against the judgment of the General Court (GC) delivered in Kadi (III). Mr Kadi and the preceding judicial decisions need no presentation here. As a consequence, this post will omit all details on Kadi (III) and the background to that decision.

The Commission (C-584/10 P), the Council (C-593/10 P) and the United Kingdom (C-595/10 P) basically supported their application on three main grounds. Firstly, the GC had erred in law in Kadi (III) by refusing to grand judicial immunity to the Regulation including Mr Kadi’s name in the 1267 list. Secondly, the standard of judicial review applied by the GC in order to supervise the inclusion of Mr Kadi in the list had been excessively demanding. Finally, the arguments of the GC concerning the violation of his rights of defense and the right to a fair trial were wrong. It must be noted that Mr Kadi was withdrawn from the UNSC 1267 list on 5 October 2012, that is, some months after the oral phase of the procedure before the ECJ had taken place. This incident provoked some surprise amongst the parties to the case but should not preclude a final ruling on a previous GC judgment.

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Obama’s Counter-Terrorism Speech: A Turning Point or More of the Same?

Published on May 27, 2013        Author: 

Gleider I Hernández is Lecturer in Law, University of Durham. The author is grateful to Dr Philippa Webb, Professor Michael Schmitt and Thomas Liefländer for their exchanges of views on this topic.

The 2012 revelation that United States President Barack Obama was immersed in the authorisation and execution of targeted drone strikes by the CIA against suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia was, to put it mildly, important. Shielded from open scrutiny from Congress or the judiciary, and operating on the margins of the public eye, the ‘kill list’ of candidates has resulted in an astonishing number of drone strikes, with the Bureau of Investigative Journalism estimating between 240 and 347 people have been killed in Yemen since 2002, with a further 2541 to 3533 killed by some 278 CIA drone strikes in Pakistan.

As such, three developments in the last fortnight go some way to lifting the veil of secrecy that had heretofore surrounded the US’ weaponised drones program (on which I was asked to comment on the BBC World Service last Friday, linked here):

  1. The 22 May letter from Attorney-General Holder disclosing certain information about the US citizens who have been killed by US counter-terrorism operations outside areas of active hostilities.
  2. President Obama’s 23 May speech at the National Defence University, which has been described as the most important speech on counter-terrorism policy since 2001.
  3. The simultaneous release of a Fact Sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’ (and referred to by Obama as the “Presidential Policy Guidance” (PPG)). This document sets out a number of principles with respect to the United States’ conduct of counterterrorism operations.

Ben Emmerson QC, UN Special Rapporteur on Human Rights and Counterterrorism, has suggested Obama’s speech ‘affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay’ (for the full press release, see here.)

Although there is much truth to Emmerson’s cautious endorsement of the principles contained in Obama’s speech, there are important policy considerations that have been made public and deserve further scrutiny. Moreover, when taken together, Obama’s speech and the Presidential Policy Guidance represent a claim to the normalisation or even a ‘banalisation’ of the practice of targeting terror suspects at large.

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The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

Published on December 24, 2012        Author: 

André Nollkaemper is Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He directs the project on ‘Shared Responsibility in International Law’ (SHARES); this piece is cross-posted on the SHARES Blog.

On 13 December 2012, the European Court of Human Rights (‘the Court’) found the that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia´s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out what exactly this approach is. While the fact that the Court does not feel compelled to follow the ILC´s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ´attribution´ and ´imputation´ – one may guess that the Court uses the latter when it seeks to leave aside the ILC´s approach, but it would be nice if the Court would not invite us to speculate.

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The Constitution of EU Counter-Terrorism Law

Published on July 16, 2012        Author: 

Cian C. Murphy is a lecturer in law at King’s College London the author of EU Counter-Terrorism Law: Pre-emption & the Rule of Law.

Over the past decade counter-terrorism law has come to be understood as a distinct field of study for legal scholars. Part constitutional law, part criminal, and – increasingly – part administrative law, counter-terrorism law lacks a coherent jurisprudence but instead has as its core a common aim: the combating of ‘terrorism’. This is also true in EU law. EU counter-terrorism law is rarely identified as a field of law because its boundaries are difficult to demarcate. The EU Council Action Plan Against Terrorism is a rather unwieldy document – it contains a wide range of legal and non-legal measures – which overlaps with several other strategic fields. Yet the EU has played a significant role in counter-terrorism in Europe since the September 11 2001 attacks, and indeed counter-terrorism has shaped several fields of EU law, in particular Justice and Home Affairs. EU counter-terrorism law can be said to include the Framework Decision on Combating Terrorism and the sanctions that gave rise to both the Kadi and OMPI litigation, but also the European Arrest Warrant (which only became politically palatable after the September 11 attacks), and the wide range of controversial surveillance systems that have been precipitated by the EU’s co-operation with global counter-terrorism efforts.

If identifying EU counter-terrorism law is somewhat difficult then characterising the law is an even more troublesome task. In the United States, counter-terrorism actions since 2001 have been described as attempting to normalise the exception: establishing a seemingly permanent emergency to allow extraordinary law enforcement and security powers to be extended. Perhaps the greatest distinction between the US and EU approach to counter-terrorism can be caught through this idea of the ‘exception’. It has become de rigueur to begin any analysis of President George W. Bush’s response to the September 11 2001 attacks with the citation of Carl Schmitt’s statement that ‘sovereign is he who decides on the exception’. The attempts by the Bush administration to step ‘outside’ the legal constraints of the US Constitution, international human rights law and laws of war by declaring an ‘exception’ have been well documented.

However, no such declaration has, or could be made, by the EU. The EU has no coercive power of its own but relies on that of the Member States. Europol does not consist of jurisdiction-hopping cops as is sometimes portrayed by film or television but of intelligence officers that co-ordinate national law enforcement officers. The EU legal system is heavily reliant on the co-operation of domestic and supranational actors to ensure the enforcement of its law. As such, any attempt to ‘declare the exception’ by an EU President would be fruitless (not least because it is unclear which President would declare it). It is therefore unsurprising that, although sometimes used by Member State governments, the language of a ‘war on terror’ has been entirely absent from EU counter-terrorism discourse.

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R v Mohammed Gul: Are You a Terrorist if You Support the Syrian Insurgency?

Published on March 14, 2012        Author: 

Dr Kimberley N. Trapp is lecturer in law at Newnham College, University of Cambridge.

In its recent decision in Regina v Mohammed Gul[1], the Court of Appeal held that there is nothing in international law which requires the broad definition of terrorism under the Terrorism Act 2000, as amended,[2] to be read so as to exclude acts of war committed during an armed conflict.

Mohammed Gul, then a law student at Queen Mary, had posted videos on YouTube that “showed attacks by Al Qaeda, the Taliban and other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq and Afghanistan, [and] the use of IEDs against Coalition forces […].”[3]  He was prosecuted for supporting terrorism as defined under Section 1 of the Terrorism Act, found guilty and sentenced to 5 years in prison.  The principal issue considered by the CA was whether the trial judge’s response to jury questions had been correct in law.  After having retired, the jury asked whether “an explosives attack on Coalition forces in Iraq is a terrorist attack” within the meaning of the Terrorism Act 2000. The judge told them that it was, and the Court of Appeal has agreed.  In this post, I want to take serious issue with that conclusion.

The Court of Appeal started by accepting that there is a customary international crime of terrorism (at least in times of peace) on the basis of the decision by the late Judge Cassese in the Appeals Chamber of the Special Tribunal for Lebanon 2011 Interlocutory Decision on the Applicable Law.  Let’s leave that controversy to one side – much has already been said on the Special Tribunal’s decision already. The question the CA then asked is whether “international law has developed so that an attack by insurgents on military forces of a government is not terrorism” – or otherwise put whether international law excludes lawful acts of war (as governed by IHL) from the definition of terrorism.  The reason this question needed asking is that, at least prima facie, “the definition [of terrorism] in Section 1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists.”[4]  The CA therefore needed to know whether there was any international law reason why the Act should be interpreted more narrowly.

The CA focused on customary international law as the source of a potential military exclusion from the definition of terrorism. It examined what it referred to as state practice (some of it in the form of treaty practice of the OIC and OAU, plus the criminal codes of Canada and Australia) and concluded – despite the fact that three out of the four sources examined exclude military conduct from the definition of terrorism – that the “necessary widespread and general state practice or the necessary opinio juris to that effect has not yet been established.” It is hard to see how the CA could have concluded otherwise given the limited practice canvassed.

But it is unclear how the CA jumped from its conclusion that customary international law doesn’t exclude acts of war from the definition of terrorism (accepting for argument’s sake that custom does indeed define terrorism as an international crime) to its conclusion that “there is nothing in international law which would exempt those engaged in attacks on the military during the course of an insurgency from the definition of terrorism.”  Perhaps the CA might have considered other sources of international law? Perhaps a treaty to which the UK is a party?  The Terrorist Bombing Convention is clearly applicable to the facts of the case and speaks directly to the issue of whether the bombing of military targets by insurgent groups in Iraq and Afghanistan amount to an act of terrorism under international law.

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