Leiden Policy Recommendations on Counter-terrorism and International Law

On Thursday 1 April 2010, Dr. Larissa van den Herik and Professor Nico Schrijver presented to Minister Verhagen the Leiden Policy Recommendations on Counter-terrorism and International Law. The Leiden Policy Recommendations are the result of a three-year project, which the Grotius Centre for International Legal Studies of Leiden University and Campus The Hague organised with the full support of the Netherlands Ministry of Foreign Affairs. The aim of the project was to contribute to the debate on the role of international law in countering terrorism. In 2008, the project leaders Van den Herik and Schrijver composed three expert working groups, consisting of distinguished international experts. These working groups covered the following topics: (i) Improving International Cooperation in the Investigation & Prosecution of Terrorist Acts; (ii) The Use of Force against Terrorists, and (iii)Intersection Between International Human Rights Law and International Humanitarian Law in the Fight against Terrorism. The Leiden Policy Recommendations provide expert perspectives on areas in which greater consensus needs to be pursued.

Text Verhagen

 

Recommendations

Dagestan hopes tourist will replace terrorists

(Eurasia LIFT)  President of Dagestan, Mr Magomedsalam Magomedov, insists that his focus is on creating jobs and improving living standards in Dagestan, one of Russia’s poorest regions, to drain support for Muslim extremism.

Dagestan has hopes of exploiting the tourist potential of its picturesque location on the shores of the Caspian Sea and the rich ethnic diversity of the 33 peoples who comprise its population of 2.6 million. But the terrorist threat hangs over its investment plans.

Mr Magomedov admitted that official corruption and abuses by security forces had fuelled radicalism and encouraged young men to “go into the forest” and join Wahabbist militants fighting to establish an Islamist regime.

The more the authorities make mistakes, the less is their chance to be popular and that gives greater opportunities to our enemies to criticise us. I work according to one principle, that all our actions must be on legal grounds.
We categorically don’t want to permit extrajudicial punishments or illegal detentions. Such operations unfortunately happened in the past and perhaps even now, but every one of those events is a matter for our individual attention and scrutiny.
We will not allow innocent people to be treated harshly. This is also grounds for bandits to say that the authorities do not respect their people and their rights. We will take care of and defend the rights of our citizens.

UK: Identity Documents Bill text is available

The text of the Identity Documents Bill has been published online.

Read a comment on the text here.

UNICEF concerned about the trial of Khadr

Statement by UNICEF Executive Director, Anthony Lake, on the case of Guantanamo Bay detainee, Omar Khadr, 26 May 2010.

UNICEF is concerned about the impending trial of Guantanamo Bay detainee, Omar Khadr.  Omar Khadr was arrested in Afghanistan in 2002 for crimes he is alleged to have committed when he was a child of 15 years of age. He is the last child soldier held in Guantanamo Bay.
The recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted.  The children involved are victims, acting under coercion. As UNICEF has stated in previous statements on this issue, former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.
The prosecution of Omar Khadr may set a dangerous international precedent for other children who are victims of recruitment in armed conflicts. At a time when the UN celebrates the 10th anniversary of the Optional Protocol on the Involvement of Children in Armed Conflict, we call on all governments that have ratified this treaty, including the United States, to uphold the spirit of the Protocol and all its provisions.
In addition, anyone prosecuted for offenses they allegedly committed while a child should be treated in accordance with international juvenile justice standards, which provide them with special protections. Omar Khadr should not be prosecuted by a tribunal that is neither equipped nor required to provide these protections and meet these standards.

HXA v. Home Office: on the legality of detention of a terrorist suspect pending deportation

On 21 May the UK High Court issued the judgment in the case HXA v. Home Office, holding that detention of a suspect terrorist pending deportation motivated not only by the need to remove the subject from the  UK, but also to ensure his surrender into custody in the receiving countries, is unlawful.

The claimant in the case at hand was an Iraqi national who had been granted exceptional leave to remain in the United Kingdom. He had since been served with a notice of a decision to deport him and to detain him pursuant to Sch.3 para. 2(2) of the Immigration Act 1971, on basis that the claimant had been actively engaged in the provision of material support to the insurgency in Iraq, and inter alia that he was also known to be in contact with several individuals in this country assessed to be operating to an Al Qaeda agenda, assessed as representing a threat to national security.

The secretary of state’s preference was that upon his return to Iraq he should be detained, if legally possible, either by the Iraqi authorities or by multinational or United States forces, in order to avoid the resumption by the claimant of his anti-UK terrorist-related activities. The claimant was detained pending deportation between January and November 2005. By November it became clear that it would not be possible to transfer him into custody on his return to Iraq, and in those circumstances the deportation decision was withdrawn.

The Court found that detention of the claimant was unlawful for two main reasons.  Firstly, the pre-June 2005 detention was unlawful in that the secretary of state did not consider what might happen to the claimant on his return to Iraq, to any risks to his safety in Convention terms, or to what safeguards might be required if he were to be returned in a way that was compatible with his Convention rights.

Secondly, from June onwards the claimant was not being detained for the sole purpose of removing  him from the UK, but also for investigating whether acceptable arrangements could be made to return him into detention in Iraq. In this respect, the Court held that

The power of detention under the 1971 Act is patently not a power available to detain for preventative purposes in this country in order to protect the public from threat of terrorism (cf the express powers under the Anti-Terrorism Crime and Security Act 2001 struck down in ‘A’) and I decline to imply into it an analogous power to detain in order to make arrangements for such preventative detention overseas no matter how compelling the requirements of UK national security that this should be done.

Read a comment of the case on UK Human Rights Blog.

DoD allegedly investigating “terrorism-related” acts by US Military and contractors

The new Department of Defense Inspector General’s report, “Contingency Contracting: A Framework for Reform” (14 May 2010), reveals that the Defense Criminal Investigative Service (DCIS, the criminal investigative agency working for the DoD’s Inspector General) has nine open investigations into alleged “Terrorism-Related Acts” by “U.S. contractor personnel, U.S. Military, Government personnel.

The “terrorism-related” investigations are part of more than 220 open investigations in DCIS’s “Global War on Terror Investigations.” These investigations are grouped into three predominant investigative categories: Public Corruption; Procurement Fraud; and Theft and Technology Protection.

The report does not add any detail as to the ongoing investigations, nor any comment has been provided to the press.

The report is also noteworthy in that it documents how private contractors working for US Special Forces have been allowed to “perform inherently governmental functions”.

Two ICO reports

The Information Commissioner’s Office (ICO) has recently published two reports.

The first is “The Privacy Dividend: The Business Case for Investing in Proactive Privacy Protection” (March 2010), which ICO commissioned from Watson Hall Ltd and John Leach Information Security Ltd (JLIS Ltd). The aim of the report is to help organisations understand the business rationale for, and benefits to be gained from, building in better privacy protection.

The report concludes that protecting personal information makes good business sense; it brings real and significant benefits that far outweigh the effort privacy protection requires; and ignoring privacy and not protecting personal information has significant downsides. The report analyses the value of personal information from different perspectives and outlines the consequences of privacy failures. It recognises that there is no ‘one size fits all’ approach and provides practical tools to help organisations construct customised business cases for investing in privacy protection.

The second is a review (May 2009) of the strengths and weaknesses of the EU Data Protection Directive which it commissioned from RAND Europe.

The ICO commissioned RAND Europe to conduct the study amid growing fears that the current European Directive was out-dated and too bureaucratic. The RAND study concludes that, in an increasingly global, networked environment, the Directive will not suffice in the long term. The report acknowledges that the Directive has helped to harmonise data protection rules across the European Union and has provided an international reference model for good practice. However, the report also says that the Directive is often seen as burdensome and too prescriptive, and may not sufficiently address the risks to individuals’ personal information. Click here for the report summary.