Read the 104th 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
Kenya: Human Rights Watch report alleges enforced disappearances in the context of counter-terrorism operations
Mali: ICC opens Al Mahdi trial, concerning destruction of cultural heritage
Somalia: Intergovernmental Authority on Development report calls for increased regional cooperation against the threat of al Shabab
AMERICAS
USA: The Intercept publishes classified FBI rules on surveillance of journalists
USA: Freedom of Information Act reforms signed into law
USA: Guantánamo Periodic Review Board decisions
USA: Guantánamo detainees transferred to Italy, Serbia and UAE
USA: Appeals ruling in Microsoft Ireland case
USA: Administration proposes amendments to process for access to digital evidence across borders
USA: Previously classified “28 pages” from the 9/11 report released
USA: 9/11 pre-trial hearings resume
USA: Documents show FISC reigning in FBI collection of ‘post-cut-through digits’
USA: Presidential Policy Guidelines on direct action against terrorist targets released
USA: Collaboration between intelligence agencies on collection of medical intelligence from intercepted communications of non-profit groups
USA: Court of Appeals affirms lack of jurisdiction over torture claims arising from detention under enemy combatant status
USA: FISCR decision on collection of ‘post-cut-through digits’ released
USA: Decision in interlocutory appeal in al-Nashiri case
Canada: Court stays convictions of alleged terrorists, finding entrapment
Canada: Government announces stepping up anti-terrorism efforts
ASIA – PACIFIC
Afghanistan: Documents reveal continued application of harsh interrogation techniques under Obama Administration
Australia: Government announces new counter-terrorism legislation
Australia: Establishment of cyber-intelligence unit to identify terrorism financing
China – USA: Talks regarding increased counter-terrorism cooperation
India: Government announces amendments to anti-terrorism laws
Japan: Government plan aims to develop drone fighter
Malaysia: New National Security Act takes effect
Pakistan: Terrorist attack on lawyers
Pakistan: National Assembly adopts Electronic Crimes Bill
Pakistan: Supreme Court upholds death sentences in terrorism cases
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Report reveals fifteen secret directions in force under Telecommunications Act
UK: Parliamentary Joint Committee on Human Rights publishes critical report on Counter-Extremism and Safeguarding Bill
UK: Radical cleric Choudary convicted
UK: Independent Reviewer finds “operational case” for bulk collection of personal data
UK: Information Commissioner to review refusal of freedom of information request in rendition case
UK: Government advances plan for special units for radicalized prisoners
UK: House of Commons Home Affairs Select Committee calls for independent review of decision to place Prevent duty on a statutory basis
Bulgaria: New counter-terrorism legislation approved
France: Critical report of parliamentary investigation into response to terrorist attacks published
France: State of emergency extended
France: Teenager remanded in custody for alleged terrorism plans
Germany: Government proposes broad range of counter-terrorism measures
Russian Federation: Anti-terrorism bill signed into law
Turkey: Crackdown following attempted coup
Turkey: Open to conditional talks with EU on reform of anti-terrorism law
Turkey – USA: Gulen extradition request
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Reports on human rights and the prevention and countering of violent extremism
UN: Special Representative qualifies IS suicide attacks in Afghanistan as war crime
EU: European Parliament Committee approves draft Counter-Terrorism Directive
EU: European External Action Service publishes paper on “civmil convergence” and synergies between internal and external security agencies
EU: Commission proposed new rules regarding financing of terrorism
EU: Privacy Shield approved by Member States
EU: Advocate General opinion on the general obligation of telecommunication service providers to retain data
EU: British Commissioner appointed security czar
EU: Commission welcomes Franco-German initiative on compelling messaging operators to provide access to encrypted content
Global: Human Rights Watch report on detention of children as national security threats
E-BULLETIN no. 104
AFRICA & MIDDLE EAST
Kenya: Human Rights Watch report alleges enforced disappearances in the context of counter-terrorism operations
On 20 July, Human Rights Watch published a report alleging that Kenyan security forces have forcibly disappeared at least 34 people in the past two years, during multi-agency counter-terrorism operations in which the military was actively involved in raiding homes and compounds to arrest people who were allegedly suspected of links with al Shabab.
Mali: ICC opens Al Mahdi trial, concerning destruction of cultural heritage
On 22 August, the International Criminal Court (ICC) opened the trial of Ahmad Al Faqi Al Mahdi, who pled guilty to one count of directing an attack against buildings dedicated to religion and historic monuments. In 2012, he directed and organized a group of men and participated himself in the destruction of nine mausoleums and one mosque in Timbuktu that were central to the religious and cultural life of Malians in Timbuktu, which was at that time controlled by rebels and members of al-Qaeda in the Islamic Maghreb. Mahdi is the first person to be tried by the ICC for destroying cultural heritage. Mahdi is yet to be sentenced and it is reported that the prosecution has agreed to recommend a sentence in the range of 9-11 years’ imprisonment.
ICC Website
Media Report
Blog Post
Somalia: Intergovernmental Authority on Development report calls for increased regional cooperation against the threat of al Shabab
On 15 August, the Intergovernmental Authority on Development (IGAD), an eight-country trade bloc that comprises governments from the Horn of Africa, Nile Valley and the Great Lakes region, launched a report on al Shabab, in collaboration with Saham Foundation. The report reflects the outcome of a pilot project to research and analyse the threat posed by al Shabab to the region beyond Somalia and provides a series of recommendations to be taken by IGAD Member States and other stakeholders to mitigate that threat, which emphasize among other things the need for cooperation and coordination and a more robust regional framework for security cooperation, intelligence sharing and mutual legal assistance.
AMERICAS
USA: The Intercept publishes classified FBI rules on surveillance of journalists
The Intercept has obtained classified rules that govern use by the Federal Bureau of Investigation (FBI) of national security letters (NSLs), which allow it to obtain information about journalists’ calls without approval by a judge or informing the news organizations being targeted. Media advocates have said that the documents show that the FBI imposes few constraints on itself when it bypasses the requirement to obtain subpoenas or search warrants before accessing journalists’ information. In 2013, the Department of Justice issued new guidelines tightening the rules for when prosecutors could surveil journalists. These guidelines, however, do not apply to NSLs, of which the FBI issued 13,000 in 2015 alone. It is unclear how often they were used to obtain journalists’ records.
The Intercept ArticleUSA: Freedom of Information Act reforms signed into law
On 30 June, President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act, framed as an effort to make permanent the Administration’s changes instituted in the handling of FOIA requests. Among other things, the law codifies a presumption of disclosure that Obama re-instituted at the outset of his presidency and it imposes a 25-year time limit on what may be withheld under the privilege of deliberative process. The amendments call for the establishment of a consolidated online portal for submitting and tracking document requests under FOIA, which however remains unfunded, as the legislation does not authorize new expenditures.
USA: Guantánamo Periodic Review Board decisions
On 6 July, the Periodic Review Board (PRB) recommended the transfer of Mohammed Ghanem, a Yemeni citizen. On 11 July, the PRB recommended the transfer of Shawqi Awad Balzuhair, a citizen of Yemen, of Abdul Latif Nassir, a citizen of Morocco, and of Abdul Zahir, a citizen of Afghanistan. On 14 July, the PRB recommended the transfer of Mahamedou Ould Slahi, the Mauritanian detainee who wrote the “Guantanamo Diary” and was subjected to a special interrogation regime approved by former Defence Secretary Rumsfeld. On 21 July, the PRB recommended the transfer of Ravil Mingazov, the last remaining Russian citizen who arrived at Guantánamo in 2002. On 28 July, the PRB recommended the release of Musa’ab al-Madhwani, a Yemeni citizen detained since 2002 and on 1 August, the of Hail Aziz Ahmed al-Maythali, a Yemeni citizen who was arrested together with al-Madhwani. On 9 August, the PRB recommended the transfer of Sufyian Barhoumi, an Algerian citizen. All men had been detained at the Guantánamo Bay detenction centre since 2002. Abdul Razak Ali, Haroon al Afghani, Mohammed al Qahtani, Ghassan al Sharbi, Abdzl Rahim Gulam Rabanni, Ismael Ali Faraj al Bakush and Omar Mohammed Ali al-Rammah were added to the list of “forever prisoners” evaluated as too dangerous to release by the PRB, on 6 July, 14 July, 18 July, 27 July, 8 August, 15 August and 22 August respectively.
Periodic Review Secretariat Website
Miami Herald Periodic Review Guide
Media Report
USA: Guantánamo detainees transferred to Italy, Serbia and UAE
On 10 July, Yemeni national Fayiz Ahmad Yahia Suleiman was transferred from Guantánamo Bay to Italy. One day later, Yemeni national Mansur Ahmad Saad al-Dayfi and Tajik national Muhammadi Davlatov were transferred to Serbia, the first two transfers to this country. On 15 August, the Department of Defense announced the transfer of twelve Yemeni and three Afghan detainees to the United Arab Emirates, marking the largest single detainee transfer of the Obama administration. Meanwhile, on 7 July, several Republican lawmakers questioned Obama Administration officials before the House Foreign Affairs Committee with regard to the transfer of former Guantánamo detainees. They claimed that former detainees had been placed in countries that do not have the necessary oversight capabilities, citing the temporary disappearance in June of ‘Jihad Diyab’, who was sent to Uruguay in 2014 (he later showed up in Venezuela, saying he wanted help in traveling to reunite with his family). Currently, 61 detainees remain in Guantánamo, twenty of whom are approved for transfer; 31 others are on a continue-to-detain status but have not been charged with a crime, and ten have cases being handled through military commission proceedings. On 11 August, Senator Ayotte released a Pentagon Report detailing the profiles of those currently detained in and recently released from Guantánamo Bay, arguing that closing the facility would pose a safety risk.
Miami Herald Periodic Review Guide
Media Report
Media Report
Media Report
Media Report
Blog Post
USA: Appeals ruling in Microsoft Ireland case
On 14 July, a panel of the Second Circuit Court of Appeals ruled unanimously that Microsoft need not comply with a US Government warrant for E-mails stored on an Irish server. The panel held that warrants issued under the Stored Communications Act do not have extraterritorial effect. It further considered the warrant to have been purportedly executed in Ireland, where the data was located. As warrants cannot command searches and seizures outside the US without Congressional authorization, it was therefore held to be null and void.
Court Decision
Media Report
Blog Post
Blog Post
USA: Administration proposes amendments to process for access to digital evidence across borders
On 15 July, the Obama Administration unveiled proposed legislation designed to amend the process by which law enforcement agents access digital evidence across borders. It would permit the President to enter into agreements with foreign countries whereby US firms would not longer be prohibited as a matter of domestic law from responding to local law enforcement demands for E-mails and other communications in the investigation of serious crimes. Among other things, the proposed legislation includes the condition that agreements would only be permitted with foreign governments that afford “robust substantive and procedural protections for privacy and civil liberties”, and the orders issued pursuant to the agreement would need to meet numerous requirements, including that they be tailored to a specific account, person or device and based on justified and credible suspicion. The request would need to be overseen by a judge and could not be used to infringe upon freedom of speech. The agreements would not permit foreign governments to make direct requests for data of a US citizen, legal permanent resident or any person located in the US. Furthermore, a monitoring requirement would be included, whereby the foreign government would need to agree to periodic reviews by the US.
Legislative Proposal
Blog Post
USA: Previously classified “28 pages” from the 9/11 report released
On 15 July, the House Intelligence Committee released the declassified the “28 pages” from its 9/11 inquiry, which detail connections between Saudi Arabia officials and the hijackers.
9/11 pre-trial hearings resume
On 18 July, pre-trial hearings in the 9/11 prosecution resumed for first time since May. Among other things, the hearings centred on Walid Bin Attash’s request to represent himself, raising the question whether a 9/11 defendant can fire his death-penalty defender and go forward with the capital case with only a military attorney representing him. On 24 July, defence attorneys said for the first time that the Government had destroyed a secret Central Intelligence Agency prison with secret permission of the trial judge, about which they have been complaining in a cloaked manner since May. Judge Army Col. James L. Pohl has not set a date for the mass-murder trial of the five men accused of plotting the 9/11 attacks that killed 2,976 people. On the eve of the resumption of the pre-trial hearings, Army Brig. Gen. Martins, the chief war crimes prosecutor, said that he is willing to once again postpone his retirement to stay on the job past late 2017, following a first three-year extension in 2014.
Miami Herald Reporting
Media Report
USA: Documents show FISC reigning in FBI collection of ‘post-cut-through digits’
On 27 July, The Intercept published previously undisclosed documents obtained by the Electronic Privacy Information Center as part of an on-going Freedom of Information Act lawsuit. They reveal that the Foreign Intelligence Surveillance Court (FISC) told the Federal Bureau of Investigations (FBI) several times between 2005 and 2007 that using some incidental information it collected while monitoring communications in an investigation would require an explicit authorization from the court, even in an emergency. The Intercept furthermore independently obtained sections of the FBI’s Domestic Investigations and Operations Guide (DIOG) describing how the Bureau deals with incidental information (called post-cut-through digits, e.g. credit card numbers) it acquires during a call through a Pen Register / Trap and Trace surveillance, a capability that is set up to record incoming and outgoing phone numbers for a particular phone but not contents. The DIOG sections show that the FISC’s pushback has become internal FBI policy.
The InterceptUSA: Presidential Policy Guidelines on direct action against terrorist targets released
On 6 August, in response to a court order in a lawsuit filed by the American Civil Liberties Union (ACLU), the Obama Administration released a redacted version of the Presidential Policy Guidance (PPG) that sets out the standard operating procedures for when the US takes direct action, which includes lethal and non-lethal use of force and capture, against terrorist targets outside the US and areas of active hostilities. They were issued by President Obama in May 2013 following promises of more transparency and stricter controls for the drone programme. Among other things, the document provides a window into the “nomination” process for targeting individuals with lethal force or for capture and it describes procedures for conducting “after action reports” to assess the consequences. The Administration has subsequently clarified that its self-defined “areas of active hostilities” are Afghanistan, Iraq and Syria.
PPG
ACLU Website
Media Report
Blog Post
Blog Post
USA: Collaboration between intelligence agencies on collection of medical intelligence from intercepted communications of non-profit groups
On 10 August, The Intercept published a top-secret document provided to it by National Security Agency (NSA) whistle-blower Edward Snowden, which documents the NSA’s collaboration with the Defense Intelligence Agency to extract “medical SIGINT” from intercepted communications of non-profit groups, starting in the early 2000s. Medical intelligence can include, among other things, information about disease outbreaks or the ability of a foreign regime to respond to chemical, biological and nuclear attacks. The NSA did not comment on the collaboration, but its Deputy Director said in June that the Agency was “looking … theoretically” at exploiting biomedical devices like pacemakers in order to surveil targets.
The Intercept (1)
The Intercept (2)
USA: Court of Appeals affirms lack of jurisdiction over torture claims arising from detention under enemy combatant status
On 12 August, the Court of Appeals for the District of Columbia Circuit affirmed the lower court’s dismissal of a lawsuit by former Guantánamo detainee Mohammed Jawad claiming he was tortured. The Court affirmed the district court’s finding that the Military Commissions Act of 2006 removes the court’s jurisdiction over matters arising from the detention of someone who was given enemy combatant status.
USA: FISCR decision on collection of ‘post-cut-through digits’ released
On 22 August, the Office of the Director of National Intelligence declassified a Foreign Intelligence Surveillance Court of Review (FISCR) opinion, issued on 14 April. It concerns the incidental collection of numbers dialled during a phone call (post-cut-through digits) in the context of an authorized Pen Register / Trap and Trace surveillance, which is set up to record incoming and outgoing phone numbers but not contents. The FISCR opinion treats post-cut-through digits as a new pseudo-category of content information that does not enjoy the same Constitutional protection as content at large, distinguishing the former from the later based on the limited information that is collected and the limited technological ability to stop incidental collection of such “content information”, without however clearly defining the exact bounds of the distinction. The opinion requires that, as a condition of allowing collection beyond the intended scope of the Pen/Trap order to occur, “the government is prohibited from making any investigative or evidentiary use of content information”.
USA: Decision in interlocutory appeal in al-Nashiri case
On 30 August, the District of Columbia Circuit Court issued its decision in the Government’s interlocutory appeal on the MV Limburg aspect of the case against Abd al-Rahim Hussain al-Nashiri, in which the majority of charges relate to the bombing of the USS Cole. Al-Nashiri is alleged to have also been responsible for the bombing of the Limburg, a civilian tanker registered under a French flag and chartered by a Malaysian firm, off the coast of Yemen in October 2002. The substantive issue before the Court was whether the bombing was a violation of the law of war principle of distinction, which depends on whether it was committed as part of al Qaeda’s armed conflict with the US although the latter had no apparent connection with the ship. If it was not a law of war offence, the military commission would lack statutory subject-matter jurisdiction over the Limburg charges, and may lack constitutional subject-matter jurisdiction as well. In the interlocutory appeal, the Court agreed with the Government that it should abstain from deciding this question and that the question was a matter to be proved at al-Nashiri’s military commission trial.
Court Decision
Blog Post
Blog Post
Canada: Court stays convictions of alleged terrorists, finding entrapment
On 29 July, the Supreme Court of British Columbia stayed the convictions of John Nuttall and Amanda Korody, finding that they were “skilfully manipulated” and entrapped in a sting operation organized by the Royal Canadian Mounted Police. This is the first time a counter-terrorism sting, the tactics for which were developed by the FBI through modifying those of undercover narcotics stings, has been thrown out in its entirety in Canada or the US. In the United States, more than 200 people have been convicted based on undercover counter-terrorism stings since 11 September 2001.
Court Decision
Media Report
Media Report
Canada: Government announces stepping up anti-terrorism efforts
On 17 August, Public Safety Minister Goodale announced that the Canadian Government will step up its anti-terror efforts. He said the Government is in the final stages of hiring a senior adviser who will spearhead an anti-terror programme to counter radicalization, with a new national office to open sometime in the autumn.
ASIA – PACIFIC
Afghanistan: Documents reveal continued application of harsh interrogation techniques under Obama Administration
On 13 July, BuzzFeed reported on documents related to certain interrogation techniques used in Afghanistan, instituted under President Bush and continued under President Obama, which it obtained through a Freedom of Information Act request and cover a time period that followed Obama’s “surge”, a major expansion of the war in Afghanistan that led to an influx of prisoners to be interrogated. The documents reveal a technique called “separation”, in which a prisoner is physically isolated so he cannot communicate with anyone but US personnel such as guards, interrogators and medics. Often, it was approved for use in combination with other interrogation techniques, such as restrictions on sleep and psychological approaches. At BuzzFeed’s request, the UN Special Rapporteur on torture, Juan Méndez, reviewed two of the separation requests and said it was obviously a coercive tactic to induce people to talk, and amounted to cruel, inhumane or degrading treatment in violation of international law.
BuzzFeed ReportAustralia: Government announces new counter-terrorism legislation
On 25 July, Prime Minister Turnbull proposed new counter-terrorism legislation that would allow for indefinite detention of convicted terrorists who have served their sentences but are deemed to pose an on-going threat to public safety. The proposal will be discussed with State and Territory officials who must then enact legislation and is similar to regimes already in place for sex offenders and extremely violent individuals in some states. Attorney-General Brandis said the extension of detention would be a court-supervised process with regular reviews and reassessments. The legislation would furthermore also allow for “control orders” to be placed on children as young as fourteen, and would add a new offence of advocating genocide.
Australia: Establishment of cyber-intelligence unit to identify terrorism financing
On 9 August, the Government announced that it has set up a cyber-intelligence unit under the Australian Transaction Reports and Analysis Centre in order to identify terrorism financing, money laundering and financial fraud online, because of what it called “unprecedented” threats to national security.
Media ReportChina-US: Talks regarding increased counter-terrorism cooperation
On 26 July, a senior US Administration official said that the US is looking at ways to increase counter-terrorism cooperation with China, including cooperation “in specific areas such as increasing exchanging of information, but also in other ways to contribute to stability in places like Iraq”. China has tried to encourage Western nations in particular to help in its fight against what it calls Islamist extremists in the Xinjiang region who operate as the East Turkestan Islamic Movement, but Western countries have thus far been reluctant to share intelligence citing concerns over possible human rights abuses, which China strongly denies.
Media ReportIndia: Government announces amendments to anti-terrorism laws
On 12 August, Home Minister Singh announced that the Government is working on strengthening anti-terrorism laws and providing legal protection for undercover operations. Addressing the National Conference on Investigative Agencies, Singh said the Government is working to amend the Unlawful Activities (Prevention) Act and the National Investigation Agency (NIA) Act, including, among other things, “considering legal protection of undercover operations [and] use of intelligence collected as evidence”.
Media ReportJapan: Government plan aims to develop drone fighter
On 19 August, Reuters reported that Japan aims to develop a prototype drone fighter jet in two decades, with private sector help in a technology strategy that focuses on weapons communications and lasers. The plan calls for first developing an unmanned surveillance aircraft in the next decade and then an unmanned fighter jet ten years later.
Media ReportMalaysia: New National Security Act takes effect
On 1 August, the National Security Act entered into force, which allows Government authorities to declare martial law in areas deemed to be under a security threat. Among other things, police will be able to conduct warrantless searches, seize property and impose curfews.
Pakistan: Terrorist attack on lawyers
On 8 August, a suicide bomber struck a hospital in Quetta, killing scores of lawyers who had gathered to condemn the lethal shooting hours earlier of a prominent colleague as well as other intellectuals, many of them from the Pashtun community. The attack is the deadliest ever on lawyers in Pakistan and among the worst anywhere. The ICJ urged the Pakistani Government to conduct an immediate, impartial and thorough investigation into the attack, which it described as “a serious loss for the legal community” that increases existing pressure on the independence of the Bar. The ICJ also urged the Government to take urgent measures to guarantee the security of lawyers, which should include effective measures of protection against attempts on their lives and the lives of their family members.
Pakistan: National Assembly adopts Electronic Crimes Bill
On 11 August, the National Assembly adopted the Prevention of Electronic Crimes Bill 2015, after the Senate had unanimously adopted it last month. Among other things, the law provides for up to seven years in prison for recruiting, funding and planning of terrorism online. It also allows “authorized officers” to require anyone to unlock any computer, mobile phone or other device during an investigation. Government officials say that internet restrictions under the new law are needed to ensure security against growing threats, such as terrorism. Civil society groups have expressed concern over its vague language, which could lead to curtailment of free speech and unfair prosecutions.
Civil Society Report
Media Report
Pakistan: Supreme Court upholds death sentences in terrorism cases
On 29 August, the Supreme Court of Pakistan rejected petitions by families of sixteen people sentenced to death for terrorism offences who complained of unfair trials in the country’s military courts. This decision, which the ICJ deems a serious set-back to human rights and the rule of law, is the first time the Supreme Court considered the legality of a military-tried case. Since January 2015, when Pakistan empowered military courts to try civilians for terrorism-related offences, eleven military courts have been constituted. They have thus far concluded the trials of 128 persons, sentencing 100 people to death and four to life sentences. The ICJ has called on the Pakistani Government to roll back the system of “military injustice” and ensure that all terrorism suspects are guaranteed basic fair trial protections, and has urged the reinstatement of a moratorium on executions with a view to abolishing the death penalty in law and in practice.
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Report reveals fifteen secret directions in force under Telecommunications Act
A July report of the Interception of Communications Commissioner revealed there are fifteen secret “directions”, or warrants, in force under the 1984 Telecommunications Act, enabling intelligence services to collect bulk data about online and phone traffic. The directions relate to traffic data, subscriber and service user information acquired by the Government Communications Headquarters and the national security service MI5. It was the first time that the number of orders imposed on telephone and Internet companies under section 94 of the 1984 Act has been published. Until last year, they were not subject to formal oversight by any watchdog and the directions’ use was very poorly recorded. Privacy International called the report “a damning verdict of the government and intelligence agencies’ use of very vague powers as a justification of mass surveillance of innocent people”.
Commissioner Report
Media Report
UK: Parliamentary Joint Committee on Human Rights publishes critical report on Counter-Extremism and Safeguarding Bill
On 22 July, the Parliamentary Joint Committee on Human Rights published its report on the Counter-extremism and Safeguarding Bill, concluding that there is no agreement about how to combat extremism, “particularly since the Government is also under a duty to uphold the democratic and human rights”. The report identifies specific problems with the Government’s proposals, which include among others the lack of a clear definition of extremism. In the Committee’s view, the Government has not been able to demonstrate a gap in the existing legal framework for terrorism and public order offences, and there is a danger that the proposed legislation would be counter-productive.
Committee Report
Media Report
Blog Post
UK: Radical cleric Choudary convicted
On 28 July, the Central Criminal Court of England and Wales found Anjem Choudary guilty of inviting support for the so-called Islamic State (IS), in contravention of section 12 of the Terrorism Act 2000, between 29 July 2014 and 6 March 2015, after counter-terrorism chiefs spent almost twenty years to bring him to trial. Choudary, and the proscribed organizations he helped to run, had been accused of radicalizing young men and women. A string of his followers have either left the UK to fight in Syria or tried to do so. Police said the radical cleric had stayed “just within the law” for years, but was arrested after pledging allegiance to IS. Choudary was convicted alongside his confidant Mohammed Mizanur Rahman, who was also previously convicted of soliciting to murder.
UK: Independent Reviewer finds “operational case” for bulk collection of personal data
On 19 August, the Independent Reviewer of Terrorism published a report reviewing the safeguards that the Government has proposed to put in place through the Investigatory Powers Bill. He concluded that bulk collection of personal data by UK security agencies plays an important role in combating terrorism and serious crime, with a “proven operational case” for bulk interception, bulk acquisition and bulk personal datasets, and a “distinct (though not yet proven) operational case” for bulk equipment interference. The report says that the human rights framework is the essential starting point for any law on investigatory powers, but does not comment on whether the powers are compatible with human rights.
Independent Reviewer Report
Media Report
Blog Post
UK: Information Commissioner to review refusal of freedom of information request in rendition case
On 22 August, Reprieve announced that Britain’s Information Commissioner will review the Government’s refusal of a freedom of information request about possible political interference with the Crown Prosecution Service (CPS) investigation of the UK Government’s role in the 2004 kidnapping and rendition to torture in Libya of the al-Saadi and Belhaj families. In June, the CPS announced that it would not bring charges in the case, named Operation Lydd. Evidence of the UK’s central role in the operation had emerged after the fall of the Gaddafi regime in 2011. The Government has never denied nor acknowledged its role in the operation.
Reprieve websiteUK: Government advances plan for special units for radicalized prisoners
On 22 August, Justice Secretary Truss said extremist prisoners will be put in special units in English and Welsh jails. The measure was announced after a review led by Ian Acheson into Islamist extremism in prison, probation and youth justice, which found among other things that “charismatic” prisoners acting as self-styled emirs exert a radicalizing influence on fellow prisoners. Former prison governor and now director of the Prison Reform Trust, Peter Dawson, said the special units could be effective if they were used as a short term measure with a focus on rehabilitation, but warned that the proposed strategy only deals with “half of the problem”, as the Acheson report raised serious concerns about radicalization in lower-security prisons, which have been hardest hit by staff cuts in recent years. He added that the Government must “be wary of creating a colony of jihadists”.
UK: House of Commons Home Affairs Select Committee calls for independent review of decision to place Prevent duty on a statutory basis
On 31 August, the House of Commons Home Affairs Select Committee called for an independent review of the Government’s decision to place the Prevent duty on a statutory basis. Rights Watch UK, in a report released in July, warned that the Government’s Prevent strategy aimed at combating home-grown terrorism is stifling freedom of expression within the classroom and risks being counterproductive. The Counter-Terrorism and Security Act 2015 requires teachers from the childcare sector up to university to identify apparent signs of student extremism and refer young people to the Government’s deradicalization programme.
Media Report
Civil Society Statement
Civil Society Report
Bulgaria: New counter-terrorism legislation approved
On 28 July, Bulgaria’s parliament approved anti-terrorism legislation that allows the Government to curb civil rights during an emergency. The changes, which were approved on a first reading and must be endorsed again, will among other things allow police access to private property during an anti-terror operation, and authorize them to restrict people’s movement, suspend access to the Internet or seize documents of those suspected of preparing a terrorist act. Furthermore, the authorities will be allowed to keep for up to three years personal communication data they have gathered. Institutions such as schools will be obliged to develop and apply anti-terror measures.
Media ReportFrance: Critical report of parliamentary investigation into response to terrorist attacks published
On 4 July, a parliamentary commission set up to assess the failure to prevent a series of attacks that killed a total of 147 people in 2015 published its report, highlighting a “global failure” of French intelligence and recommending an overhaul and creation of a single national counter-terrorism agency. Currently, France has six intelligence units answering variously to the interior, defence and economy ministries. The commission, among other things, found that the different agencies had struggled to communicate about known Islamist extremists who had been under surveillance, in prison or had their phones tapped at some point. The report further said that there had been failings in surveillance when radicalized criminals were released from prison, and flagged failures in European security coordination. The inquiry found that the state of emergency imposed after the November 2015 attacks, as well as the deployment of military to patrol the streets, had only a limited impact on security.
Commission of Inquiry Report
Commission of Inquiry Website
Media Report
Media report
France: State of emergency extended
On 21 July, Parliament approved and adopted into law an extension for six months of the state of emergency announced by President Hollande following a terrorist attack in Nice on 14 July that killed 84 people, which had been first imposed after the November 2015 Paris attacks and had been set to expire on 26 July. The extension creates France’s longest state of emergency since the Algerian War in the 1950s. It extends and expands previous emergency provisions, including the reinstatement of warrantless seizures of computer and cell phone data that the Constitutional Council had struck down on 19 February, adding a few restrictions that fall short of judicial oversight.
Senate Website
Blog Post
Civil Society Statement
France: Teenager remanded in custody for alleged terrorism plans
On 8 August, a French court remanded in custody a sixteen-year-old girl who is being investigated for criminal terrorist enterprise and provocation to commit terrorist acts using online communication. She was the administrator of a group on the encrypted Telegram messaging app, which was also used by the men who murdered a priest in the Normandy town of Saint-Etienne-du-Rouvray on 26 July.
Germany: Government proposes broad range of counter-terrorism measures
On 11 August, the Government proposed a broad range of measures in response to two recent attacks by terrorists pledging loyalty to the Islamic State and a deadly shooting rampage in Munich. Among other things, the proposals announced by interior minister Thomas de Maizière include greater use of video surveillance, in particular facial recognition; making it a crime to express sympathy for terrorism; greater sharing of intelligence data across Europe; stripping dual citizens of their German citizenship if they fight for extremist groups; and making it easier to deport foreigners deemed to be dangerous. De Mazière also announced that border police would pilot a scheme whereby refugees resettled in Germany under the deal between Turkey and the EU would have to hand over their smartphones for security checks if they did not have passports.
Media Report
Media Report
Media Report
Media Report
Russian Federation: Anti-terrorism bill signed into law
On 7 July, President Putin signed into law a package of controversial anti-terror bills, which among other things lower the minimum age for being prosecuted for terrorist activities from 16 to 14 years, and require communication companies to store client information for up to three years and record phone calls, messages and transferred files for six months. The laws’ extraordinarily wide remit has alarmed broad parts of Russian society, including the telecoms industry and human rights defenders. The Presidential Council for Civil Society Development and Human Rights, a Governmental department, had urged President Putin to veto the bills due to what it viewed as unconstitutionality, legal uncertainty and inconsistency of certain provisions.
Blog Post
Blog Post
Media Report
Civil Society Interview
Turkey: Crackdown following attempted coup
In the night of 15-16 July, under circumstances that remain unclear, elements of Turkey’s military allegedly linked to the Gulenist movement unsuccessfully attempted a coup. In its aftermath, the Government unleashed a crackdown that appears to go far beyond holding to account those involved in attempting to overthrow it, which has affected most of the country’s major institutions: among others, thousands of judges and prosecutors have been detained, as well as a large number of journalists. On 20 July, the Government declared a 90-day state of emergency under domestic law and, one day later, Turkey notified the Council of Europe that it “may” derogate from the European Convention on Human Rights, without however providing any detail concerning the actual derogations, or even to which of Convention’s articles they would pertain. On 23 July, the Government issued a first emergency decree, which among other things allows the permanent discharge of judges, prosecutors and civil servants without any investigation or possibility of legal challenge. Furthermore, it also extends police powers to detain some suspects for up to 30 days without appearing before a judge and it curtails the right to private communication with a lawyer. A second decree, issued on 27 July, permits prosecutors to restrict a detainee’s access to a lawyer for the first five days of police detention. On 11 August, the United Nations published Turkey’s notification of derogations from the International Covenant on Civil and Political Rights (ICCPR). Although this does not make explicit the actual derogations, the notification indicates which articles may be affected. That same day, the Council of Europe’s Commissioner for Human Rights expressed concern over the institution of “extremely wide and indiscriminate administrative powers affecting core human rights and the erosion of domestic judicial control”. On 19 August, a group of UN human rights experts urged the Turkish Government to uphold its obligations under international human rights law, calling for Turkey not to derogate from the ICCPR under Article 4 or, at the very least, to strictly adhere to the restraints provided therein.
ICJ Statement
ECHR Suspension Notification
ICCPR Suspension Notification
UN Experts Statement
Council of Europe: Commissioner Statement
Blog Post
Blog Post
Civil Society Statement
Turkey: Open to conditional talks with EU on reform of anti-terrorism law
On 11 August, Turkey’s Ambassador to the EU said that Turkey would be willing to modify its anti-terrorism law if the changes do not impede the fight against terrorism and if Turkish citizens are guaranteed visa-free travel in Europe. Changing the definition of terrorism and what constitutes a terror act, with a view to ensuring that journalists and academics are not arrested, is one of 72 benchmarks the EU set for Turkey before it can obtain the visa-waiver, which is part of a package of incentives that the EU has offered to persuade Ankara to stop migrants coming to Europe and take back thousands more.
Media Report Turkey-USA: Gulen extradition request
On 23 August, ahead of a visit by US Vice President Biden to Ankara, Turkish and American justice officials met to discuss Turkey’s demands for the extradition of Fethullah Gulen, accused by Turkey of having masterminded the failed coup attempt in July, which he denies. Biden sought to assuage Turkish concerns that the US is shielding Gulen. On 30 June, the District Court for the Middle District of Pennsylvania had dismissed a lawsuit in which it was alleged that Gulen issued orders from within Pennsylvania directing his followers in Turkey to launch “a targeted campaign of persecution against a different religious group in Turkey”.
Court Decision
Media Report
Media Report
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Reports on human rights and the prevention and countering of violent extremism
On 21 July, a report of the UN High Commissioner for Human Rights was published on best practices and lessons learned on how protecting and promoting human rights contribute to preventing and countering violent extremism. The report highlights domestic law and policy developments in the area, with a focus on the role played by the promotion and protection of human rights. On 3 August, a further report of the High Commissioner was published, summarizing a panel discussion held during the 31st session of the UN Human Rights Council in March on the human rights dimensions of preventing and countering violent extremism.
High Commissioner Report (1)
High Commissioner Report (2)
UN: Special Representative qualifies IS suicide attacks in Afghanistan as war crime
On 24 July, the UN Special Representative to Afghanistan stated that the suicide bombings in Kabul one day earlier, which targeted Shiite Hazaras who were holding a peaceful demonstration and in which over 260 civilians were reportedly wounded, amounted to a war crime. The so-called Islamic States (IS) has claimed responsibility for the attack.
Special Representative Statement
Media Report
EU: European Parliament Committee approves draft Counter-Terrorism Directive
On 4 July, the European Parliament’s Committee on Civil Liberties approved a compromise text for an EU Directive on combating terrorism, which requires several further steps before becoming law. In March, the ICJ with other prominent human rights organizations, urged the EU and its Member States to respect and protect human rights and the rule of law in countering terrorism, stressing the implications of the proposed policy changes on, among others, the right to be free from torture and cruel, inhuman or degrading treatment or punishment, the principle of legality, the principle of non-discrimination and the right to privacy.
Committee Report
ICJ Statement
EU: European External Action Service publishes paper on “civmil convergence” and synergies between internal and external security agencies
On 5 July, the European External Action Service published a “food for thought” paper, calling for EU missions, officials and representatives abroad to be used for more information- and intelligence-gathering and making a number of proposals in relation to “civmil convergence” (crises of both a civilian and military nature) and synergies between internal and external security agencies and activities.
EEAS PaperEU: Commission proposed new rules regarding financing of terrorism
On 5 July, the European Commission published its proposal for new rules aimed at countering terrorist financing and money laundering that will amend the 4th Anti-Money Laundering Directive that was agreed in May 2015. The proposed amendments include, among other things, the obligation for “virtual currency exchange platforms” and wallet providers to conduct diligence checks on customers and introduces a harmonized EU approach towards “high-risk third countries”. On 14 July, the Commission published a list of 11 “high risk countries”, establishing for the first time a common EU list of countries whose financial institutions will have to apply “enhanced customer due diligence measures”. The countries match those identified by the Financial Action Task Force.
European Commission Proposal
European Commission List
EU: Privacy Shield approved by Member States
On 8 July, EU Member States gave their support to the EU-US Privacy Shield, the renewed framework for transatlantic data flows, paving the way for its formal adoption. The agreement replaces the Safe Harbour agreement, which allowed US companies to skirt EU rules on protection of data and was struck down by the Court of Justice of the European Union in October 2015 over data protection concerns. While the European Commission says the Privacy Shield puts in place “clear limitations, safeguards and oversight mechanisms”, digital rights group Privacy International has criticized the agreement, which it says has been drawn up on a flawed premise, as EU negotiators should have sought to enact legislation to guarantee the protection of privacy rather than accepting US Government assurances that data will be protected.
European Commission Statement
Media Report
Privacy International
EU: Advocate General opinion on the general obligation of telecommunication service providers to retain data
On 19 July, the Advocate General released his opinion in two joined cases that originated from challenges in the UK and in Sweden of the general obligation imposed on telecommunication service providers to retain data relating to electronic communications. The Advocate General concluded that general retention may be compatible with EU law, if it satisfied strict requirements. In his opinion, the fight against serious crime is by itself an objective in the general interest that is capable of justifying a general obligation to retain data, whereas combating ordinary offences and the smooth conduct of proceedings other than criminal proceedings is not. Overall, the Advocate General declared that the safeguards enumerated in the 2014 judgment of the Court of Justice of the European Union in Digital Rights Ireland are all mandatory.
EU: British Commissioner appointed security czar
On 2 August, the European Commission announced that President Juncker will appoint the British nominee, Julian King, as commissioner for the security of the union. King will support the implementation of the European Agenda on Security, which the European Commission adopted in April 2015 and aims to support Member State cooperation in tackling security threats and to step up common EU efforts in the fight against terrorism, organized crime and cybercrime.
European Commission: Mission Letter
Media Report
EU: Commission welcomes Franco-German initiative on compelling messaging operators to provide access to encrypted content
The European Commission welcomed a Franco-German initiative that proposes to compel operators of mobile messaging services to provide access to encrypted content in terrorism investigations. In mid-August, French Interior Minister Cazeneuve had announced he would discuss a European initiative with a view to launching an international action plan with his German counterpart de Maiziere.
Media Report
Media Report
Media Report
Global: Human Rights Watch report on detention of children as national security threats
In a report released on 28 July, Human Rights Watch (HRW) documented how thousands of children in conflict-affected countries have been detained without charge for months or even years as national security threats. The report, which concerns in particular Afghanistan, the Democratic Republic of the Congo, Iraq, Israel/Palestine, Nigeria and Syria, details abuses that have arisen subsequent to the adoption of overbroad and vague counter-terrorism legislation in response to extremist armed groups such as the so-called Islamic State and Boko Haram. HRW found that, in addition to children who are arrested for actual criminal offences, many are rounded up in massive sweeps or arrested based on flimsy evidence. Former child detainees report having been beaten, raped, given electric shocks, forced to remain in prolonged stress positions and to strip nude, and threatened with execution.
HRW ReportFind this E-Bulletin and more information about the ICJ, the rule of law and human rights on our website: www.icj.org. Please send feedback about the E-Bulletin to [email protected].