ICJ E-Bulletin on counter-terrorism and human rights – no. 101
Read the 101st issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels.
The E-Bulletin on Counter-Terrorism and Human Rights provides hyperlinks to full texts of reports, statements, laws, court judgments and legal analysis. It aims at fostering an informed debate on the implications of counter-terrorism measures for the promotion and protection of human rights.
AFRICA & MIDDLE EAST
Egypt: Military courts try at least 7,400 civilians in unfair trials
Tunisia: Civil society coalition launches Uphold Rights While Fighting Terrorism campaign
Israel: Punitive home demolitions
AMERICAS
USA: Microsoft lawsuit concerning customers’ E-mail privacy
USA: Reform rules and procedure of military commissions
USA: Eleven Guantanamo detainees resettled in Senegal and Saudi Arabia
USA: Justice Against Sponsors of Terrorism Act engenders Saudi threats of retaliation
USA: FISC opinion offers insight to warrantless surveillance of American citizens
USA: Supreme Court decision clears way for using Iranian money to compensate terror victims
USA: E-mail privacy bill passed unanimously by House of Representatives
USA: Appeals court dismisses FOIA request about use of drones for targeted killings
USA: Lawsuit against creators of CIA interrogation programme proceeds
USA: Supreme Court approves changes to criminal procedure making it easier for the FBI to hack into computers
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: European Court of Human Rights finds no violation in Menezes shooting
UK: Report uncovers systematic cooperation with US drone strikes in Yemen
France: President withdraws plan for Constitutional reform stripping citizenship
France: Government proposes another extension of the state of emergency
Germany: Constitutional Court rules anti-terrorism law partially unconstitutional
Georgia: Constitutional Court rules surveillance legislation unconstitutional
Portugal: Constitutional Court denies appeal against extradition to Italy of CIA agent convicted for involvement in Abu Omar kidnapping
Russian Federation: Bill proposes introduction of misprision in criminal code
Turkey: President proposes to strip citizenship of supporters of terrorism
Turkey: Journalists detained for tweets
UNITED NATIONS & REGIONAL ORGANIZATIONS
EU: European Parliament approves Passenger Name Record directive
EU: Privacy Shield agreement criticized by EU regulators
UN: Group of 18 UN independent experts welcome Principles and Guidelines on Human Rights while Countering Terrorism in Africa
E-BULLETIN no. 101
AFRICA & MIDDLE EAST
Egypt: Military courts try at least 7,400 civilians in unfair trials
On 13 April, Human Rights Watch reported that military courts have tried at least 7,420 civilians since October 2014, when Law 136 for the Securing and Protection of Public and Vital Facilities, decreed by President al-Sisi in absence of a parliament, vastly extended their jurisdiction to essentially include the protection of all public property. Human Rights Watch cites a list provided by the independent Egyptian Coordination for Rights and Freedoms. Most defendants were sentenced after mass trials that violate fundamental due process rights. The list documents 324 cases, the largest of which involved 327 defendants, at least 86 of which are children. Thousands of civilians were retroactively referred to military trials for crimes they allegedly committed before al-Sisi imposed the law, which did not involve the military forces.
NGO StatementTunisia: Civil society coalition launches Uphold Rights While Fighting Terrorism campaign
On 28 April, a coalition of 46 national and international human rights organizations published an open letter, launching a campaign addressed to all Tunisians entitled ‘No to Terrorism, Yes to Human Rights’. The campaign stresses that combatting terrorism and the duty to respect human rights are not mutually exclusive, nor should one be met at the expense of the other.
NGO Statement 1
NGO Statement 2
Israel: Punitive home demolitions
On 31 March, the High Court of Justice issued a judgment instructing the revocation of a demolition order, issued for the home of the parents and siblings of a suspect in a terrorist attack in Jerusalem under Regulation 119 of the Defence (Emergency) Regulations 1945, which gives military commanders the power to order house demolitions as a punitive measure. In the case, the judges in the majority found respectively: a) that the young man could not be considered to be living in the home; or, b) that his diminished tie of residency entailed that the decision to demolish his family’s house was disproportionate, since they could not be alleged to have had constructive knowledge of the planned act. On 8 April, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported that 124 Palestinians, including 60 children, had been made homeless in a single day as a result of demolitions in the West Bank. Figures released by OCHA show a four-fold increase in demolitions in the West Bank compared to last year.
NGO Statement
OCHA Statement
Media report 1
Media report 2
AMERICAS
USA: Microsoft lawsuit concerning customers’ E-mail privacy
On 14 April, Microsoft filed a lawsuit in the Federal District Court in Seattle against the Department of Justice regarding the privacy of their customers’ E-mails. In its filing, the company claims that the 1986 Electronic Communications Privacy Act is unconstitutional, violating the company’s First and their customers’ Fourth Amendment Rights by preventing Microsoft from notifying its customers about Government requests for their E-mails through secrecy orders. The issue arises from the interaction of the law’s delayed notification provision (so-called “sneak and peak” warrants that authorize the authorities to delay notice to the target of surveillance, but not indefinitely) with a provision that allows the Government to compel, via warrant and without notice to the target, the contents of communications that have been stored for more than 180 days. In the 18 months leading up to March 2016, Microsoft received 5,624 federal demands for customer information or data, nearly half of which were accompanied by secrecy orders, 1,752 of which included no time limits. Microsoft’s lawyers claim that a review of the high percentage of secrecy orders granted showed that the prosecutors had often relied on the vague standard that there was “a reason to believe” that disclosure might hinder an investigation, the NY Times reports.
Microsoft filing
Media report
Blog post 1 Blog Post 2
USA: Reform rules and procedure of military commissions
On 14 April, the Pentagon submitted to Congress its proposals for amendments to the rules and procedures that govern the military commissions at Guantanamo Bay, purported to enhance the commissions’ efficiency. One of the proposals would permit for the defendants to appear by video-teleconference rather than in person, denying them the right to be present and confront their accuser in court, as guaranteed by the Sixth Amendment to the Constitution. Other proposed changes include allowing civilian lawyers to represent the defendants instead of military ones; allowing the primary judge in the case to appoint another judge to consider and rule on certain motions; and making it easier for the Government to convert a case from one seeking the death penalty to one seeking life in prison.
Proposed amendments
Blog post 1
Blog post 2
USA: Eleven Guantanamo detainees resettled in Senegal and Saudi Arabia
On 4 April, following a notification at the end of March to Congress that it intends to resettle nearly a dozen detainees held at Guantanamo Bay, the Department of Defense (DoD) announced the transfer to Senegal of Libyan nationals Salem Abdu Salam Ghereby and Omar Khalif Mohammed Abu Baker Mahjour Umar. On 16 April, the DoD announced the transfer to Saudi Arabia of nine Yemeni detainees, namely Ahmed Umar Abdullah Al-Hikimi, Abdul Rahman Mohammed Saleh Nasir, Ali Yahya Mahdi Al-Raimi, Tariq Ali Abdullah Ahmed Ba Odah, Muhammed Abdullah Muhammed Al-Hamiri, Ahmed Yaslam Said Kuman, Abd al Rahman Al-Qyati, Mansour Muhammed Ali Al-Qatta, and Mashur Abdullah Muqbil Ahmed Al-Sabri. The men were brought to Guantanamo about 14 years ago and were held there since without charge or trial. Eighty detainees remain at Guantanamo.
DoD announcement
Media report 1
Media report 2
Blog post 1
Blog post 2
USA: Justice Against Sponsors of Terrorism Act engenders Saudi threats of retaliation
The Justice Against Sponsors of Terrorism Act, a bill with wide bipartisan support that is currently pending in the Congress, drew attention when the NY Times in mid-April reported that Saudi Arabia is threatening to sell off hundreds of billions in US assets in retaliation if it becomes law. The newspaper reports that according to both Government officials and congressional aides from both parties, the US Administration has been lobbying Congress to block the bill’s passage, warning of diplomatic and economic fallout from the legislation. If passed, it would allow private plaintiffs to sue foreign governments for committing or abetting terrorist acts inside US territory. Families of the 9/11 terrorist attacks have been using the courts to try to hold members of the Saudi royal family, Saudi banks and charities liable for their alleged financial support for terrorism. Those efforts have largely been stymied, in part because of a 1976 law that gives foreign nations certain immunities from lawsuits in American courts. The bill intends to exclude from such immunity cases where nations are found culpable for terrorist attacks that kill Americans on US soil.
NY Times article
Blog post 1
Blog post 2
Media report 1
Media report 2
Media report 3
Media report 4
USA: FISC opinion offers insight to warrantless surveillance of American citizens
On 19 April, the Office of the Director of National Intelligence released a redacted version of an opinion of the Foreign Intelligence Surveillance Court (FISC) dated 6 November 2015, one of the first to incorporate a special advocate as required by the USA Freedom Act. The court’s opinion offers insights into the functioning of the ‘minimization’ procedures of the Federal Bureau of Investigation (FBI) linked to warrantless surveillance under section 702 of the Foreign Intelligence Surveillance Act, which authorizes the National Security Agency (NSA) to collect communications between foreign targets and Americans without individualized FISC approval as long as a “significant purpose” of the programme is acquiring foreign intelligence. In 2008, the FISC had held that this warrantless surveillance satisfies the Fourth Amendment, stating any intrusion on those interests is mitigated by restrictions on the use and retention of incidentally acquired information about Americans (so-called ‘minimization’, the procedures for which are not public). The FISC opinion offers valuable insight into how section 702 is being used as a loophole to collect information on American citizens without a warrant. The opinion holds that this complies with the Constitution and the FISA Amendment Act 2008, but noted concerns about a series of incidents in which the FBI and NSA deviated from court-approved limits on their surveillance activities.
Court opinion
Blog post 1
Blog post 2
Blog post 3
Media report
USA: Supreme Court decision clears way for using Iranian money to compensate terror victims
On 20 April, the Supreme Court in Bank Markazi v Peterson decided that Congress had not violated the separation of powers when it passed the Threat Reduction and Syria Human Rights Act in 2012, which includes a section specifically allowing access to frozen Iranian funds in a New York bank account “in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by” certain acts of terrorism. The Supreme Court held that the federal statute does not violate the separation of powers even if it directs a particular result in a single pending case, as Congress may require “a court to apply a new legal standard in a pending prejudgment enforcement proceeding”. Among those affected by the ruling are the family members of 241 American servicemen killed in the 1983 terrorist bombing of US Marine Corps barracks in Beirut. A federal district court in Washington had found Iran liable for financing and sponsoring the attack, and a federal district court in Manhattan found that the victims could attach $ 1.75 billion USD in blocked Iranian assets to enforce their judgments. On 25 April, Iran’s Foreign Minister said the country would seek to sue the US at the International Court of Justice in The Hague to prevent distribution of the impounded assets.
Court opinion
Law
Media report 1
Media report 2
Blog post
USA: E-mail privacy bill passed unanimously by House of Representatives
On 27 April, the House of Representatives voted unanimously to pass the Email Privacy Act, which if now approved by the Senate also would substantially revise the 1986 Electronic Communications Privacy Act, requiring law enforcement agencies to obtain search warrants from a judge in order to gain access to personal messages and files stored on the servers of companies. Currently, enforcement agencies are allowed to get E-mails older than 180 days and other files using a subpoena, without the need for a judicially authorized warrant. Furthermore, under the amended legislation, law enforcement agencies will no longer be able to indefinitely prevent disclosure of the existence of the warrant to the target of surveillance.
USA: Appeals court dismisses FOIA request about use of drones for targeted killings
On 21 April, the US Court of Appeals for the DC Circuit upheld a dismissal for a Freedom of Information Act (FOIA) request for information about the US Government’s use of drones for “targeted killings” that had been filed by the American Civil Liberties Union. The appeals court agreed with the Central Intelligence Agency (CIA) that the requested documents were properly classified and exempt from FOIA requests because they pertain to intelligence activities and/or foreign activities of the USA.
USA: Lawsuit against creators of CIA interrogation programme proceeds
On 22 April, a federal court in Spokane ruled that it would allow a lawsuit to go forward, in Salim and others v. Mitchell and Jessen, against the two psychologists who as federal contractors designed, implemented and oversaw the Central Intelligence Agency’s (CIA’s) rendition, detention and interrogation program that tortured at least 119 men between 2002 and 2008, denying the defendants’ motion to dismiss. In contrast with previous occasions where victims have tried to hold their torturers accountable in American courts, the Government has not invoked state secrets privilege in the case.
NGO statement 1
NGO statement 2
Blog post
USA: Supreme Court approves changes to criminal procedure making it easier for the FBI to hack into computers
On 28 April, the Supreme Court approved changes to the Federal Rules of Criminal Procedure that would make it easier for the Federal Bureau of Investigation (FBI) to hack into computers, by allowing a magistrate to issue a warrant to search or seize an electronic device regardless of where it is if the target of the investigation is using anonymity software. Previously, a judge could not approve a warrant if the investigator did not know where the computer was, because it might be outside the court’s jurisdiction. The Supreme Court ruling will also allow the FBI to hack into computers that have already been hacked. Unless Congress modifies or rejects the proposed changes, the policies will go into effect on 1 December.
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: European Court of Human Rights finds no violation in Menezes shooting
On 30 March, the Grand Chamber of the European Court of Human Rights ruled in Armani da Silva v. the United Kingdom that the respondent State did not fail to uphold its procedural obligation to effectively investigate the Menezes shooting under Article 2 of the European Convention on Human Rights, which protects the right to life. In July 2005, two weeks after the terrorist attack on the London public transport, Jean Charles de Menezes was mistaken by law enforcement for a suicide bomber and killed in the mistaken belief that he was about to set off a bomb. His family brought the case to the European Court since none of the individual officers implicated in the killing were prosecuted. In its previous jurisprudence on putative self-defence, the European Court had endorsed a hybrid subjective/objective test, requiring an honest belief that is perceived for good reasons to be valid at the time, but which subsequently turns out to be mistaken. In Armani da Silva, however, it appears the Court has moved to a pronouncedly more subjective test, indicating that the “existence of ‘good reasons’ should be determined subjectively” and that “the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary”. Accordingly, the Court took no objection to the subjective approach of English criminal law and found no violation of Article 2 of the Convention.
UK: Report uncovers systematic cooperation with US drone strikes in Yemen
A VICE News report published on 7 April details how, for the past decade, British intelligence and special forces have systematically cooperated with US and Yemeni agencies in a covert fight against al-Qaeda in Yemen, assisting with identifying and locating human targets for American drone strikes from 2010 onwards. Furthermore, the report says they also mentored Yemen’s National Security Bureau to observe and fix targets ahead of American drone strikes. The report alleges that members of a British special forces unit were seconded to the Secret Intelligence Service, allowing them to covertly continue to feed in to the US drone programme despite the fact that in 2012 British military trainers were forbidden from sharing intelligence with American forces in response to human rights concerns raised by the latter’s use of “signature strikes”.
France: President withdraws plan for Constitutional reform stripping citizenship
On 30 March, French President Hollande said that he will no longer move forward with his controversial plan to reform the country’s Constitution that would have included an amendment to deprive French citizenship or rights attached to it from dual nationals convicted of terrorism. In a short speech, he said he intended to end debate on the issue, citing the National Assembly’s and Senate’s failure to agree on an amendment.
Media report 1 (FR)
Media report 2
Blog post
France: Government proposes another extension of the state of emergency
On 20 April, French Prime Minister Manuel Valls announced in an interview that the Government will seek to extend the state of emergency by a further two months after it is set to expire on 26 May, in view of the Euro 2016 football competition and the Tour de France cycling competition taking place in June and July. The extension of the state of emergency, which began after the terrorist attacks of 13 November 2015, must be voted in Parliament. The second prolongation of the state of emergency on 16 February had drawn criticism from UN experts, the NHRI and civil society groups.
Media report 1 (FR)
Media report 2
Germany: Constitutional Court rules anti-terrorism law partially unconstitutional
On 20 April, Germany’s apex court ruled that while the authorization of the Federal Criminal Police Office to carry out covert surveillance measures is in principle compatible with fundamental rights under the German Basic Law, in some respects the current design of the investigative powers does not satisfy the principle of proportionality. It ruled various provisions within the overall legal structure unconstitutional, but the law will remain in place subject to restrictions. The court ruled, among other things, that more clarity is needed on how collected surveillance data is shared with third parties, including both other German agencies as well as foreign authorities.
Court press release
Media report 1
Media report 2
Georgia: Constitutional Court rules surveillance legislation unconstitutional
On 14 April, the Constitutional Court of Georgia ruled that legislation allowing security agents to have direct, unrestricted access to telecom operators’ networks to monitor communications, is unconstitutional. The key issue in the case was the continued access by security agencies to so-called “black boxes” installed in the infrastructure of telecom companies, allowing mass collection and monitoring of data in real time. According to media reports, the Court considered that safeguards introduced in 2014 that mandate authorization by the Personal Data Inspector to active eavesdropping on a target cannot be deemed a sufficient and effective mechanism of oversight.
Media report 1Portugal: Constitutional Court denies appeal against extradition to Italy of CIA agent convicted for involvement in Abu Omar kidnapping
On 22 April, the Constitutional Court of Portugal denied the appeal of Sabrina De Sousa against a January ruling that she should be handed over to Italy. De Sousa, who holds dual American and Portuguese citizenship, is one of 26 Americans convicted in absentia by Italian courts for her alleged role in the February 2003 kidnapping and rendition of Hassan Mustafa Osama Nasr, also known as Abu Omar. At the time of the kidnapping, she was working undercover for the Central Intelligence Agency as a diplomat in Milan. She resigned from the agency in 2009 and had avoided trial by leaving Europe, but returned to Portugal last year to be closer to her family. Portuguese courts have stated that she should have the right to a new trial in Italy, or at least the opportunity to present new evidence and witnesses in an appeal. However, media reports Armando Spataro, one of the Italian prosecutors who helped secure her criminal conviction, saying he saw no legal grounds for a new trial.
Media report 1 (Portuguese)
Media report 2
Media report 3
Russian Federation: Bill proposes introduction of misprision in criminal code
A bill introduced in the State Duma on 7 April would among other things introduce the concept of international terrorism into the Criminal Code; the financing of which would be punished by ten to 15 years’ imprisonment. Significantly, the bill also includes a provision criminalizing the failure to report crimes of a terrorist nature (‘misprison’); misprision previously existed as an offence under the Soviet criminal code. Furthermore, the bill also includes a provision requiring the deprivation of citizenship for those convicted of terrorism; and it proposes to reduce the age of criminal responsibility to 14 for terrorist crimes.
Media report 1 (Russian)
Media report 2 (Russian)
Turkey: President proposes to strip citizenship of supporters of terrorism
On 5 April, President Erdogan said in a speech to a group of lawyers in Ankara that Turkey should consider stripping citizenship from supporters of terrorism. He did not specify the targets of his comments. In the past, Erdogan has stated that those who Turkey accuses of supporting terrorism, including critical journalists and academics, are no different from the terrorist themselves.
Turkey: Journalists detained for tweets
On 30 April, news editor Hamza Aktan was detained after a raid on his house by counter-terrorism police. Following interrogation, he was referred to the prosecutor’s office at Bakirkoy Court. Media reports say his lawyers claim that Aktan was arrested due to tweets in which he shared media reports about civilians killed during the on-going conflict with the Kurdistan Workers’ Party (PKK). On 23 April, Dutch-Turkish journalist Ebru Umar was briefly arrested for tweeting comments critical of President Erdogan. She was released a day later after being questioned for 16 hours, but is not allowed to leave the country and must report to police twice weekly.
UNITED NATIONS & REGIONAL ORGANIZATIONS
EU: European Parliament approves Passenger Name Record directive
On 14 April, the European Parliament adopted the directive on Passenger Name Records (PNRs), which requires EU and foreign airline carriers to provide national authorities with data about passengers travelling to and from the EU. Between EU governments internally, PNR transfers will be based on a voluntary system of requests. EU governments must establish a “passenger information unit” to collect the data from the airlines and to handle any exchanges with other national authorities. Under the scheme, PNR data will be made anonymous after six months and retained for five years.
European Parliament press release
Media report
EU: Privacy Shield agreement criticized by EU regulators
On 13 April, Article 29, the pan-European Working Party of data regulators, criticized the EU-US Privacy Shield agreement, which would allow companies to transfer EU citizens’ data for processing or storage within the EU. The Working Party expressed concerns about the possibility for bulk data collection, noting that limits are broadly defined and as such cannot count as targeted data collection; it also expressed concerns about the strength and independence of the US ombudsman who would deal with European complaints. The Working Party’s opinion will form the basis from which national data regulators in EU Member States will set out their laws and practices.
Working Party press release
Media report 1
Media report 2
AU-UN: Group of 18 UN independent experts welcome Principles and Guidelines on Human Rights while Countering Terrorism in Africa
On 7 April, speaking ahead of a panel discussion of the African Commission on Human and Peoples’ Rights, a group of eighteen UN independent experts welcomed the Principles and Guidelines on Human Rights while Countering Terrorism in Africa, adopted by the African Commission last year. The UN experts called on all African governments to fully implement the Commission’s recommendations in order to respect human rights in the context of fighting terrorism.
UN Press Statement
Principles and Guidelines
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