9/11 Ten years on: Detection Technologies and Counter-Terrorism in Europe Conference – Brussels, 7 September 2011

DETECTER (Detection Technologies, Terrorism, Ethics and Human Rights) is an EU-funded FP 7 Security Research project which examines ethical and legal norms governing the use of detection technology in counter-terrorism. The project began in December 2008 and comes to an end in December 2011.  The project has carried out original research on controversial topics, like counter-terrorism data mining programmes, monitoring of Internet activity and the role of technology in pre-entry screening of foreign migrants.  It is also making contributions to debates on how privacy should be viewed in the counter-terrorism context. The project has pioneered private exchanges of views between technology developers, police, intelligence personnel, ethicists and human rights lawyers. These have produced constructive proposals for the modification of detection technology design and use.

On 7 September DETECTER are presenting their findings and recommendations – with responses from key policy makers and industry representatives, including Jeff Jonas, the Chief Scientist of IBM entity analytics group, and Sir David Pepper, former head of GCHQ.
 
If you are interested in attending or would just like more information please get in touch at detecter@contacts.bham.ac.uk.

Al-Qaeda, Taliban sanctions committee approves “most comprehensive set of updates” to sanctions list

The chair of the UN Security Council’s “Al-Qaeda and Taliban Sanctions Committee” on Monday said the committee has “approved the most comprehensive set of updates” to their sanctions blacklist, as well as the largest group of narrative summaries for added listings in its history.The statement came as the chairman of the Security Council Committee established under Resolution 1267 on sanctions against Taliban and Al-Qaeda members, Peter Wittig, the German ambassador to the UN, briefed the 15-nation Security Council in an open meeting.

“Today, I am pleased to report that the committee, building on these efforts, has approved the most comprehensive set of updates to the Consolidated List and the largest group of narrative summaries of reasons for listing in its history,” Wittig said.

Specifically, he told the Council that the committee has agreed to 78 list amendments and to make publicly available almost 200 additional summaries of reasons for listing.

“In particular the additional narrative summaries will further facilitate the implementation of the sanctions,” he said. “They mark an important step to close an information gap and further enhance fair and clear procedures.”

Currently, the Consolidated List has 488 entries — 258 Al- Qaeda individuals, 138 Taliban individuals and 92 Al-Qaeda entities, he said.

Since the last briefing, the committee has added the names of six individuals to the list, and removed six other individuals from the list in addition to amending 37 entries based on additional information gathered.

Despite his death, Osama Bin Laden was not removed from the list.

European Commission Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments

Read it here.

NGO calls on ECtHR to intervene in military commissions case of Al Nashiri

The Open Society Justice Initiative is calling on the European Court of Human Rights to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri.

In an application to the Court, OSI argues that Poland violated al-Nashiri’s rights under articles 2, 3 and 6 of the ECHR by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country, and that the President of the Court should exercise his power to grant interim relief under Rule 39 by indicating to the Government of Poland that it should immediately use all available means at its disposal to ensure that Al Nashiri is not subjected to the death penalty.

These means include but are not limited to: (i) making written submissions before 30 June 2011 to Bruce MacDonald, the Convening Authority for Military Commissions, to ensure that he does not approve the death penalty for Mr. al Nashiri‘s case; (ii) obtaining diplomatic assurances from the United States Government that it will not subject Mr. al Nashiri to the death penalty; (iii) taking all possible steps to establish contact with Mr. al Nashiri in Guantánamo Bay, including by sending delegates to meet with him to monitor his treatment and ensure that the status quo is preserved in his case; and (iv) retaining and bearing the costs of lawyers authorised and admitted to practice in relevant jurisdictions in order to take all necessary action to protect Mr. al Nashiri‘s rights while in U.S. custody including in military, criminal or other proceedings involving his case.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

On 20 April 2011, United States military commissions prosecutors brought charges against Mr. al Nashiri relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.

Thousands of Egyptian civilians tried in military courts since February 2011

IPS reports that thousands of Egyptian civilians, including protesters who helped topple the authoritarian regime of president Hosni Mubarak, have been tried in military courts without due process. Defendants are denied access to legal counsel, but receive assistance to defence lawyers appointed from a pool of army-approved attorneys. attorneys may be given as little as five minutes to meet with the accused, review the charges, and present the case before a military judge. Sentences handed down by military courts – which have included at least three death sentences since February – cannot be appealed.

Court records indicate Egyptian military courts have handed down more than 7,000 sentences since the Supreme Council of the Armed Forces (SCAF) removed Mubarak on Feb. 11 and assumed control of the country. Most of the trials have involved defendants accused of looting, arson and “thuggery” under tougher criminal laws passed after Mubarak’s ouster. The courts have also sentenced hundreds of protesters critical of the military council’s governance and decisions.

“Each case involves anywhere from one to 35 defendants… so we estimate that over 50,000 civilians have been sentenced in the last three months,” Ramadan told IPS. “We’ve never seen anything like this. Even under Mubarak’s rule there were only two or three military trials a year. ”

Last thoughts on the ‘kill-or-capture’ order of Bin Laden

Briefingat the White House by Press Secretary Carney:

The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

UN Special Rapporteur Martin Scheinin says the operation was lawful, and did not violate international law.

“The United States offered bin Laden the possibility to surrender, but he refused. Bin Laden would have avoided destruction if he had raised a white flag”, Scheinin said on Tuesday.According to Scheinin, apprehending a dangerous criminal like Osama bin Laden means that one must be prepared to use force. He noted that killing is permissible under international law only if the person being apprehended resists, and if there are no other means available.Scheinin said that the United States was prepared for the possibility of catching bin Laden alive, noting that the operation involved a commando raid on his hiding place, and not a missile strike.

Later the UN Special Rapporteur issued a joint statement together with Chris Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions:

“Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.

Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.

It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”

Mary O’ Connel elaborates at Foreign Policy:

The question turns on one critical factor: President Obama’s orders to the Navy SEAL team that carried out the raid on bin Laden’s compound in Abbottabad. Orders to kill, not capture, bin Laden would be difficult to defend legally. But top counterterrorism adviser John Brennan stated Monday that the SEALs were under orders to capture bin Laden if they could. CIA chief Leon Panetta has implied, on the other hand, that the team was under orders to kill, with the option to capture if he attempted to surrender. If Panetta is correct, the legal case is weakened but can still be defended.
(…)The ECHR considered a case in
1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the
elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

The discussion continues at Opinio Juris here and EJIL Talk here.

UN Security Council Counter-Terrorism Committee report on bringing terrorists to justice

Read it here.

A. International cooperation in counter-terrorism investigations and prosecutions
B. The role of the prosecution in counter-terrorism cases
C. New challenges in the investigation and prosecution of terrorism
D. Prosecution of terrorism cases and prevention of terrorism
E. The prosecution and counter-terrorism investigations
F. Organization of the prosecution and its relationship with other agencies
G. Concluding observations

List of good practices identified by participants