Read the 106th 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
Israel: Punitive house demolition
Israel: Proposed amendments expand administrative detention
Niger: USA building a drone base
Somalia: Intensifying clandestine US operations against al-Shabab
Tunisia: State of Emergency extended
Tunisia: US drones operations
AMERICAS
USA: HRW reports previously undocumented CIA torture techniques
USA: Mass Yahoo E-mail surveillance pursuant to FISC order
USA: Former high-ranking CIA officials to testify in lawsuit against psychologists who designed and implemented torture programme
USA: Former detainees suffer persistent mental health problems
USA: FBI study shows US military operations are biggest motivation for domestic terrorists
USA: Supreme Court will review Turkmen racial profiling case
USA: Lawyers request access to full medical records in 9/11 plotters military commission proceedings
USA: Guantánamo Diary author Mohamedou Ould Slahi released; Haji Wali Muhammad cleared by Periodic Review Board
USA: Court of Appeals upholds Al Bahlul conspiracy conviction
USA: Court of Appeals reinstates torture lawsuit against CACI Premier Technology under Alien Torts Statute
USA: Federal judge dismissed former Guantánamo detainee Shawali Khan habeas corpus suit
USA: Periodic Review Board decisions concerning “forever prisoners”
ASIA – PACIFIC
Bangladesh: ICJ condemns execution of Asadul Islam
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Open Society Justice Initiative study on Prevent details wide range of serious flaws in counter-extremism strategy
UK: Investigatory Powers Tribunal rules data collection illegal due to failings in oversight system
UK: Muslim Council of Britain elaborating alternative to Prevent counter-extremism strategy
UK: Joint Human Rights Committee disappointed with Government response to report on use of drones for targeted killing
UK: Six people now under terror prevention and investigative measures
France: Investment in Sahel counter-terrorism forces
France: Government announces creation of National Guard
France: Former Guantánamo detainees request investigative judge to subpoena former US Department of Defense General Counsel
France: Constitutional Council rules surveillance legislation unlawful
Germany: Parliament adopts new law on intelligence agencies
Lithuania: Documents expose Lithuanian involvement in running CIA black site
Tajikistan: ICJ expresses concern over conviction of two lawyers
Tajikistan: Government proposes legislation expanding security service powers
Turkey: State of Emergency extended
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: ICRC statement to General Assembly on measures to eliminate international terrorism
UN: World Day against the Death Penalty focuses on capital punishment for terrorism-related offences
UN: Special Rapporteur on freedom of opinion and expression criticizes impact of vague and overly broad counter-terrorism and surveillance legislation
UN: Special Rapporteur on counter-terrorism and human rights warns restrictive and rights-violating migration policies may create conditions conducive to terrorism
Council of Europe: Venice Commission opinion on Turkey’s lifting of parliamentary immunity
E-BULLETIN no. 106
AFRICA & MIDDLE EAST
Israel: Punitive house demolition
On 27 September, the High Court of Justice issued its judgment on petitions against punitive demolition orders issued for two houses in Nablus, in which lived two men involved in a terrorist attack that killed two Israeli citizens in October 2015. Rejecting one petition, the Court deemed that Amjad Aliwa, who admitted the allegations during the criminal proceedings against him, had played a central and prominent role in the attack and that his actions were of a “high level of severity” sufficient to justify use of Section 119 of the Emergency Defense Regulations, which concerns house demolitions as punishment. The dissenting judge considered that, given Aliwa’s wife and eight children’s non-involvement with the attack, demolishing the home would be disproportionate. The house was demolished on 11 October.
Civil Society Statement
Media Report
Israel: Proposed amendments expand administrative detention
On 27 October, the Government submitted proposed legislation that would expand the Defense Minister’s powers to detain Israeli citizens without trial or issue other restrictive administrative orders, for instance prohibiting a person from leaving the country or having contact with certain people, and imposing “any other order or restriction necessitated by considerations of national security or the public safety”. All administrative orders would have to be countersigned by the Interior Minister and require judicial approval within 48 hours. Detention orders could last up to six months and the other administrative orders up to one year. However, with judicial authorization they could be prolonged indefinitely. The content of the Bill was originally part of the counter-terrorism law the Knesset had approved in June, but was removed from the law for further consideration. A legal opinion prepared by the Constitution Committee considers that the proposed legislation as it stands is highly problematic. Existing law permits administrative detention and other restrictive orders only during a state of emergency.
Media ReportNiger: USA building a drone base
On 29 September, The Intercept revealed that the US military is building a USD 100 million drone-base in Agadez, Niger. Drones have long been integral to US efforts in Niger. In 2012, according to files obtained by The Intercept through a Freedom of Information Act (FOIA) request, Niger agreed to host drones in the capital Niamey on the condition that operations would eventually be shifted to a more remote military base. In February 2013 the US began flying Predator drones out of Niamey to provide “support for intelligence collection with French forces conducting operations in Mali and with other partners in the region”, according to an AFRICOM spokesperson. According to the documents obtained, Niger was the only country in northwest Africa willing to allow a base of operations for MQ-9’s, the larger, newer version of the Predator drone.
U.S. Military Is Building a $100 Million Drone Base in Africa
Somalia: Intensifying clandestine US operations against al-Shabab
On 16 October, The New York Times reported on the intensifying clandestine war in Somalia, with the Obama Administration using Special Operations troops, airstrikes, private contractors and African allies in an escalating campaign against al Shabab. According to senior American military officials, about 200 to 300 Special Operations troops work with soldiers from Somalia and other African nations, including Kenya and Uganda, to carry out more than a half-dozen raids per month. The operations are a combination of ground raids and drone strikes. The Pentagon has acknowledged only a small fraction of these operations and in its public announcements have sometimes characterized them as “self-defence strikes”.
NY TimesTunisia: State of Emergency extended
On 18 October, President Beji Caid Essebi renewed the state of emergency, which has been imposed since November 2015, for three more months. The state of emergency is based on a 1978 Presidential decree and, among other things, gives the Interior Ministry the authority to ban strikes or demonstrations deemed to threaten public order, and to order the house arrest of anyone whose “activities are deemed to endanger security and public order”.
Media Report
Media Report
Civil Society Report
On 26 October, The Washington Post reported that the Pentagon has secretly expanded its global network of drone bases to North Africa, deploying unmanned aircraft and military personnel to a facility in Tunisia to conduct surveillance missions in neighbouring Libya. Under the memorandum of understanding giving the Pentagon access to the base, the US committed to helping build up Tunisia’s intelligence-collection capabilities, and agreed to share intelligence from its Reaper drones with Tunisian security forces to help them improve border security.
The Washington Post
AMERICAS
USA: HRW reports previously undocumented CIA torture techniques
On 3 October, Human Rights Watch (HRW) released a new report in which two former Central Intelligence Agency (CIA) detainees describe previously unreported torture techniques used in secret US detention facilities oversees. Ridha al-Najjar and Lotfi al-Arabi El Gherissi, both Tunisian men repatriated from Guantánamo Bay in 2015 after having been detained for 13 years without charge, described being threatened with a makeshift electric chair, deprived of sleep, subjected to multiple forms of water torture, chained by their wrists to the ceilings of their cells for extended periods of time and severely beaten. Most of the abuse took place at a facility in Afghanistan known as Cobalt, which is also known as the ‘Dark Prison’ or the ‘Salt Pit’. The executive summary of the US Senate Intelligence Committee’s classified torture report makes no mention of electric chairs. Al-Najjar and El Gherissi now live with their families in Tunisia in destitute conditions, after they were released without the US providing any assistance or redress for their torture and suffering.
HRW ReportUSA: Mass Yahoo E-mail surveillance pursuant to FISC order
On 4 October, Reuters reported that Yahoo Inc last year secretly built a custom software program to systematically scan all of its customers’ incoming E-mails, storing any messages containing a particular digital signature tied to the communications of a foreign State-sponsored terrorist organization and making those E-mails available to the Federal Bureau of Investigations (FBI). The New York Times reported that, in doing so, the company complied with a secret Foreign Intelligence Surveillance Court (FISC) order. Its sources say the judge allowing the broad demand was persuaded that there was probable cause to believe that the digital signature was uniquely used by a foreign power. On 19 October, the American Civil Liberties Union (ACLU) with Yale Law School’s Media Freedom and Information Access Clinic filed a motion with the FISC asking the court to release all of its opinions containing “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015. The Act requires the Government to make significant FISC opinions public, which the Government maintains does not apply to rulings predating the law.
Blog Post
Blog Post
Media Report
Media Report
ACLU Website
USA: Former high-ranking CIA officials to testify in lawsuit against psychologists who designed and implemented torture programme
On 4 October, a federal judge ordered that former high-ranking Central Intelligence Agency (CIA) officials will have to sit for depositions in the lawsuit against James Mitchell and John “Bruce” Jessen, the two psychologists who designed and were involved in the implementation of the CIA torture programme. The Justice Department, which is involved in the case to represent the Government’s interest in keeping classified information secret, had sought an order that would have barred oral questioning of the CIA officials, who include John Rizzo, the Agency’s acting General Counsel at the time, and Jose Rodriguez, who was the head of the CIA Counterterrorism Center and then deputy director of operations. Rizzo had accepted the ‘Torture Memo’ of the Justice Department Office of Legal Counsel (OLC), privately acknowledging the OLC’s “ability to interpret over, under and around Geneva, the torture convention, and other pesky little international obligations”. He also helped in drafting the secret order authorizing the CIA to establish secret detention facilities overseas and to interrogate detainees. Rodriguez has repeatedly defended the CIA’s torture programme, in which he played an integral role, including authorizing the use on detainees of specific abuse methods.
Court Order
Blog Post
ACLU Website
USA: Former detainees suffer persistent mental health problems
In a series of articles published in October, The New York Times details persistent mental health problems among detainees held in secret Central Intelligence Agency (CIA) detention facilities and at Guantánamo Bay. According to previously undisclosed medical records, Government documents and interviews with former detainees and military and civilian doctors, dozens of detainees developed persistent mental health problems after being subjected to torture and other ill-treatment in CIA or military detention. According to The New York times, at least half of the 39 people who went through the CIA’s “enhanced interrogation” programme have since suffered from psychiatric problems. The Government has never studied the long-term psychological effects of its practices.
NY TimesUSA: FBI study shows US military operations are biggest motivation for domestic terrorists
On 11 October, The Intercept published its review of a 2012 secret study, ‘Homegrown Violent Extremists: Survey Confirms Key Assessments, Reveals New Insights about Radicalization’, which was conducted by a unit in the Federal Bureau of Investigation’s (FBI) counter-terrorism division that surveyed intelligence analysts and FBI special agents responsible for nearly 200 cases involving “homegrown violent extremists”. The survey appears designed to look only at Muslim violent extremism. It found that anger over US military operations abroad was the most commonly cited motivation for individuals involved in cases of “homegrown” terrorism. Other key factors driving extremism are said to include online relationships and exposure to English-language militant propaganda and ideologues. The report identified no coherent pattern to radicalization, consistent with outside scholarship on the subject, concluding that it remained near impossible to predict future violent acts.
The InterceptUSA: Supreme Court will review Turkmen racial profiling case
On 11 October, the Supreme Court granted a petition of former high-level Bush Administration officials to review the 2015 decision by the Second Circuit Court of Appeals in Turkmen v Ashcroft, which allows them to be sued for their roles in the post-9/11 profiling, immigration detention and abuse of Muslim, Arab and South Asian men. The men came to the attention of the Federal Bureau of Investigations (FBI) through discriminatory tips from scared citizens. Then-FBI Director Mueller ordered that all such tips be thoroughly investigated, even those based on blind animus and then-Attorney General Ashcroft ordered that everyone arrested as a result be held as terrorist suspects until cleared by the FBI, and then deported. Although the men could only be charged with civil immigration violations, they were detained in solitary confinement for months and physically abused. While individuals can sue federal officials for monetary damages for constitutional violations pursuant to the 1971 Supreme Court decision in Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, the Bush-era officials are arguing that an exception should be made for non-citizens who challenge unconstitutional Government policy.
Blog Post
Media Report
CCR Website
USA: Lawyers request access to full medical records in 9/11 plotters military commission proceedings
On 12 October, lawyers for some of the alleged 9/11 plotters asked the then trial judge in the military commission proceedings for access to the detainees’ full medical records from their time in CIA custody. For instance, Mustafa al Hawsawi was captured in Pakistan in March 2003 with Khalid Sheikh Mohammed and according to his lawyer “from all indications… was a healthy young male”. He emerged three years later with Hepatitis-C, cervical damage, anal prolapse and fissure, hearing loss, a gastrointestinal issue and has peed blood since July 2014, yet none of these conditions or their causes are mentioned in summaries of medical records that prosecutors furnished to the lawyers in trial preparation. Defence attorneys say they need the medical records to demonstrate that the US has lost the moral authority to execute the five men accused of executing the 9/11 attacks. Under the military commission’s classified information protection process, prosecutors can withhold or summarize certain pre-trial discovery. The judge must now examine the classified information for adequacy.
Miami Herald ReportingUSA: Guantánamo Diary author Mohamedou Ould Slahi released; Haji Wali Muhammad cleared by Periodic Review Board
On 17 October, Mohamedou Ould Slahi, author of the best-selling Guantánamo Diary published in 2015, was released after 14 years. In 2003, he was subjected to torture approved by Defense Secretary Rumsfeld. In his Diary, Slahi wrote of sleep deprivation, beating, dousing with ice water and days spent shackled in a freezing cell. The Periodic Review Board recommended his release in July, citing his “highly compliant behaviour in detention” and “clear indications of a change in the detainee’s mind-set”. Slahi was transferred back to his native Mauritania. He was never charged with an offence. Also on 17 October, the Pentagon disclosed the decision of the Periodic Review Board to approve the release of Afghan citizen Haji Wali Muhammad. He was held at Guantánamo for more than 14 years. He was never charged with a crime.
Blog Post
Media Report
Media Report
USA: Court of Appeals upholds Al Bahlul conspiracy conviction
On 20 October, the Court of Appeals for the District of Columbia Circuit sitting en banc upheld the 2008 conspiracy conviction of the former personal assistant and media relations representative of Osama bin Laden, Ali Hamza Ahmad Suliman Al Bahlul, ruling that a military tribunal had jurisdiction to convict him. The issue at hand in the current ruling was whether the Constitution grants Congress the ability to determine that conspiracy to commit war crimes is an offence triable by military commissions, even though conspiracy crimes are not recognized as international war crimes. In the decision, the majority held that foreign nations could not have “a de facto veto power” over Congress’ determination of which war crimes may be considered by a military tribunal. Bahlul was arrested by local officials in Pakistan, although it is unclear where, when and by whom precisely, and turned over to the US military who transferred him to Guantánamo Bay, where he currently remains detained. In 2008, a military commission convicted him of soliciting others to commit war crimes, providing material support to a terrorist organization and conspiracy. The appeals court quashed the former two convictions in 2014.
Court Decision
Blog Post
Blog Post
Media Report
Media Report
USA: Court of Appeals reinstates torture lawsuit against CACI Premier Technology under Alien Torts Statute
On 21 October, a panel of the Fourth Circuit Court of Appeals reinstated a lawsuit against private military contractor CACI Premier Technology, Inc. for its role in torture and other inhumane treatment at Abu Ghraib detention facility in Iraq. The Court held that the “political question doctrine does not shield from judicial review intentional acts by a government contractor that were unlawful at the time they were committed”. The concurring judge emphasized that “it is beyond the power of even the President to declare [torture] lawful… The determination of specific violations of the law is constitutionally committed to the courts, even if that law touches military affairs”. A lower court had dismissed the case, ruling that CACI’s responsibility for its established role in the torture was a “political question”, to be left to the discretion of the political branches and unreviewable by the courts. Al Shimari v Premier Technology was a case filed in June 2008 under the Alien Tort Statute. The four plaintiffs in the case were subjected to electric shocks, sexual violence, forced nudity, broken bones and deprivation of oxygen, food and water at Abu Ghraib.
Court Decision
Blog Post
CCR Website
USA: Federal judge dismissed former Guantánamo detainee Shawali Khan habeas corpus suit
On 25 October, the District Court for the District of Columbia dismissed a lawsuit filed by former Guantánamo detainee Shawali Khan. Khan was captured in Afghanistan in 2002 and was repatriated in December 2014, but pursued his habeas corpus lawsuit because he said the allegations that he had connections to a terrorist group left a cloud over his life. The Court agreed with the Justice Department that the case was moot because Khan was no longer in US custody, citing the 2011 ruling by the DC Circuit in Gul v Obama finding that factors such as harm to reputation are not enough to keep such a case active for a former detainee. Khan raised several arguments, including that because of the allegations against him and his detention at Guantánamo Bay, he cannot obtain a passport, which he needs to travel to a medical clinic in India for treatment for hearing loss he suffered as a result of “loud blaring music” used “during interrogations, mostly at Central Intelligence Agency (CIA) facilities before” he was sent to Guantánamo. Although “the court is sympathetic to the pickle” in which Khan finds himself, being “unable to receive medical treatment allegedly sustained while in US custody because of his history of being held in US custody”, it ruled that “this injury is not redressable by a federal court”.
Court Decision
Blog Post
Media Report
Media Report
USA: Periodic Review Board decisions concerning “forever prisoners”
In a decision from 22 September that was released on 27 October, the Periodic Review Board (PRB) determined that the continued detention of Palestinian detainee Abu Zubaydah (whose real name is Zayn al Abdeen Mohammed al Hussein) was necessary for the protection of the United States from a continuing significant threat to the security of the United States. Abu Zubaydah, who allegedly served as “one of Osama bin Laden’s most trusted facilitators”, was captured in Pakistan in 2002 and was subjected to some of the most aggressive torture techniques used by the Central Intelligence Agency (CIA), including 83 rounds of waterboarding. A 2009 federal task force recommended he be considered for trial in federal court or by military commission, but he was never charged with a crime. In a separate decision from 19 September that was released on 25 October, the PRB also declared Indonesian citizen Encep Nurjaman Hambali too dangerous to release from US military custody. A March 2016 intelligence profile describes Hambali as “an operational mastermind in… Jemaah Islamiyah”. He was held in secret CIA detention facilities for three years before his September 2006 transfer to Guantánamo Bay, and was never charged with any crime, although a 2009 task force had recommended that prosecutors consider putting him on trial, either in federal court or by military commission. Hambali’s civilian attorney, Carlos Warner, called the review process “a sham” and said he was forbidden to “participate in the hearing in a meaningful way”. In a separate decision from 29 September, also released in October, the PRB also upheld the indefinite detention status of Hassan Guleed, a Somali detainee and former CIA captive who has never been recommended for prosecution. The Center for Constitutional Rights, who represent Guleed, described the hearing as “grossly unfair” and the process as “fundamentally flawed”. They said to be looking “forward to filing a habeas petition to force the government to release Guleed”. In another decision of 3 October, the PRB declared Pakistani citizen Mohammed Ahmed Rabbani too dangerous to release. The 2009 task force recommended he be considered for possible trial by federal or military court for allegedly helping to arrange travel and finances for Khalid Sheik Mohammed and Abd al Rahim al Nashiri, but he was never charged. In August, the PRB had upheld the indefinite detention of Rabbani’s brother Abdul Rahim.
Periodic Review Board Secretariat
Media Report
Media Report
ASIA – PACIFIC
Bangladesh: ICJ condemns execution of Asadul Islam
On 16 October, the International Commission of Jurists condemned the execution of Asadul Islam, leader of Jamayetul Mujahideen Bangladesh (JMB), a proscribed Islamist group. He was hanged for his alleged role, along with seven other JMB leaders, in a 2005 bus bombing that killed two lower court judges. The ICJ expressed particular concern that Islam’s trial in absentia impaired his right to a fair trial. The ICJ opposes capital punishment in all cases without exception, and called on Bangladesh to impose an official moratorium on the death penalty with a view to taking prompt measures towards its abolition in law.
ICJ Website
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Open Society Justice Initiative study on Prevent details wide range of serious flaws in counter-extremism strategy
In October, the Open Society Justice Initiative published a study on the Prevent Counter-Extremism Strategy in Health and Education. The study, which focuses on these sectors because they are critically dependant upon trust and have particular care-giving functions that have not traditionally been directed towards preventing terrorism, notes that Prevent suffers from multiple, mutually reinforcing flaws, including the overly broad and vague definition of “non-violent extremism”, creating a serious risk of human rights violations, including of the right to equality and non-discrimination, the right to privacy and the right to freedom of expression, among others. Furthermore, the study finds serious indications that Prevent is counterproductive.
OSJI ReportUK: Investigatory Powers Tribunal rules data collection illegal due to failings in oversight system
On 17 October, the Investigatory Powers Tribunal (IPT) ruled that some data collection methods used by the Government Communications Headquarters (GCHQ), the Security Service (MI5) and the Secret Intelligence Service (MI6) violated the right to private life as protected under Article 8 of the European Convention on Human Rights (ECHR), in a case brought by Privacy International. The IPT examined the agencies’ collection of communications data (involving the “who, where, when, how and with whom”, but not their contents) and personal information, mostly carried out under section 94 of the Telecommunications Act 1984. An official policy about how such data collection should be carried out lawfully came into force in February 2015 and the agencies implemented it in the course of that year. The IPT ruled that prior to this, between 1998 and November 2015 and due to “failings in the system of oversight”, the surveillance regime violated Article 8 of the ECHR. However, the Tribunal did not rule the surveillance was itself illegal.
Court Decision
Media Report
Media Report
Media Report
UK: Muslim Council of Britain elaborating alternative to Prevent counter-extremism strategy
On 19 October, The Guardian reported that the Muslim Council of Britain (MCB), which represents 500 charities, schools and mosques, plans to start its own counter-radicalization scheme next year, to be run by community groups across Britain. It will include panels of community leaders, former police officers and professionals from mental health and other agencies, solely focusing on the message that violence can never be used. The MCB has criticized the Government’s Prevent counter-radicalization strategy, saying that “having Muslims pass through subjective and discriminatory counter-extremism litmus tests as a condition of engagement only re-enforces the terrorist narrative. The Prevent strategy exacerbates this problem and it is quite clear that it does not currently have the support of many among Muslim communities across the UK.”
The GuardianUK: Joint Human Rights Committee disappointed with Government response to report on use of drones for targeted killing
On 19 October, the Joint Committee on Human Rights commented on the Government’s response to its Report on the Government’s policy on the use of drones for targeted killing. The Committee expressed its disappointment that the Government refused to clarify its position in relation to the use of lethal force in situations outside armed conflict. Committee Chair Harriet Harman in this regard commented that “the Government has chosen not to answer the most important questions raised by our Report… It is simply not good enough for the Government to refuse to answer this on the grounds that it is a hypothetical question, when in the course of our inquiry it stated that it would be prepared to resort to such use of lethal force for counter-terrorism purposes even outside of armed conflict.”
JCHR Website
Blog Post
Blog Post
UK: Six people now under terror prevention and investigative measures
On 26 October, the Home Office published a review revealing that six extremists or terrorism suspects are now subject to terror prevention and investigation measures (TPIMs), which include being relocated from their home towns or cities. Five people were added to the list between May and August. The TPIM regime replaced counter-terror control orders in 2011 and can include a range of measure including curfews of up to ten hours, tagging, requiring a person to live up to 200 miles from their current address and restrictions on overseas travel. They last for up to two years.
France: Investment in Sahel counter-terrorism forces
On 7 October, an Interior Ministry official announced plans to invest EUR 42 million in training and equipment to help countries of Africa’s Sahel region and Senegal prepare to face terrorist attacks similar to those in Paris in 2015. France retains a military presence in Senegal with 350 soldiers. A much larger force of 3,500 is active in counter-terrorism operations and spread across Chad, Mauritania, Niger, Mali and Burkina Faso.
Media ReportFrance: Government announces creation of National Guard
On 12 October, the Government announced the creation of a National Guard, which rather than creating a distinct force, aims to organize a reinforcement of the operational reserve of the army, gendarmerie and the national police, currently composed of 63 000 of whom 5,500 are deployed each day since the Nice terrorist attack on 14 July, to reach 85 000 by 2018. President Hollande first proposed the creation of a National Guard following the terrorist attacks in November 2015. A General Secretary will be created to establish the National Guard and its budget in 2017 will be increased to EUR 311 million, which is EUR 100 million more than originally foreseen in the budget planning. A number of measures are foreseen in order to attract young volunteers in particular, including among other things financing the obtaining a driving license and furnishing a monthly allowance for students who engage for a five-year period for 37 active days per year.
Media Report (French)
Media Report (French)
France: Former Guantánamo detainees request investigative judge to subpoena former US Department of Defense General Counsel
On 12 October, two former Guantánamo detainees Nizar Sassi and Mourad Benchellali requested the investigative judge of the Paris Cour d’Appel (Tribunal de Grande Instance) to subpoena William Haynes, the former General Counsel for the US Department of Defence during the George W. Bush Administration. In support of the claim, the Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR) submitted an expert report detailing Haynes’ responsibility for torture and war crimes related to detainee treatment. It sets out the role Haynes had played in formulating and approving the list of interrogation techniques that led directly to torture and abuse at Guantánamo Bay; allowing the torture and abuse to continue by silencing objections from the military and other Government departments; and further facilitating the torture and abuse in various ways.
CCR WebsiteFrance: Constitutional Council rules surveillance legislation unlawful
On 21 October, the Conseil Constitutionnel issued its decision on the legality of a surveillance law rushed through in July 2015 in the wake of the Charlie Hebdo attack. Now, however, responding to a complaint filed by campaign-group La Quadrature du Net, the Internet Service Providers (ISP) French Data Network and the Federation of Non-Profit ISPs, the Council found a key clause in the law to be unconstitutional. The provision allowed security agencies to monitor and control wireless communications without the usual oversight applied to wiretapping operations. The Council expressed concern that the bulk collection of data would allow the unauthorized identification of individual conversations or communications and noted that while the law provided for new powers “necessary to protect the fundamental interests of the country”, it did not prohibit their use for other purposes. The Council also objected to the lack of definitions of the surveillance and control measures allowed and the fact that there are no means for monitoring or challenging their application. The Council did not strike out the provision, but rather has given the Government until 31 December 2017 to enact replacing legislation.
Council Decision (French)
Blog Post
Germany: Parliament adopts new law on intelligence agencies
On 21 October, Parliament adopted a law granting the intelligence agencies wider powers, including spying on EU facilities, but also introducing broader oversight, according to the Government. Most opposition Members of Parliament voted against the law. The most controversial provision of the law concerns allowing the Bundesnachrichtungendienst (BND) to intercept communications of foreign entities and individuals on German soil and abroad which pass through a major Internet exchange point in Frankfurt. DE-CIX, its operator, in September filed a lawsuit at a court in Leipzig against the Government. Until now, the BND could only monitor up to 20 percent of traffic. Among other things, the law also permits data sharing with foreign intelligence counterparts for anti-terrorist purposes, to aid the foreign missions of the German army and in situations concerning the security situation of German citizens abroad. On 29 August, the UN Special Rapporteurs on the right to freedom of opinion and expression, on human rights defenders, and on the independence of judges and lawyers expressed various concerns including the vague and overbroad conditions for the collection and processing of data; adverse impact on journalism and legal representation; discriminatory scope of the right to freedom of expression; lack of adequate independent judicial oversight and other safeguards; and the lack of a legal regime governing surveillance outside of Germany. The OSCE Representative on Freedom of the Media likewise voiced concerns, as did a host of civil society organizations.
UN Special Rapporteurs Letter
OSCE Website
Media Report (German)
Media Report
Media Report
Civil Society Statement
Lithuania: Documents expose Lithuanian involvement in running CIA black site
On 10 October, the Bureau of Investigative Journalism reported on documents it obtained, disclosing inside details of assistance provided by the Lithuanian State Security Department to the US Central Intelligence Agency (CIA). The documents consist of dozens of pages of interview summaries gathered during a 2010 investigation by the state prosecutor that looked at allegations that state officials had helped US agents set up a secret detention facility for the detention of al Qaeda suspects. The prosecutor’s investigation concluded there were no grounds for charging any Lithuanian officials. The previously secret documents form part of several hundred pages of materials disclosed by the Lithuanian Government to the European Court of Human Rights (ECtHR) last year. Amanda Jacobsen, who represents Abu Zubaydah in his claim before the ECtHR against Lithuania for its alleged role in his detention, said that “these documents make clear that Lithuanian government officials not only turned a blind eye… but actively assisted in the black site’s creation and enabled its operation by the CIA, free from legal oversight”.
BIJ WebsiteTajikistan: ICJ expresses concern over conviction of two lawyers
On 7 October, the ICJ expressed serious concerns over the conviction on charges of incitement and extremism of Tajikistan lawyers Buzurgmehr Yorov and Nuriddin Makhkamov, and their sentencing to 23 and 21 years in prison respectively. They were also banned from working as lawyers for five years after serving their sentences. The lawyers represented members of the Islamic Renaissance Party of Tajikistan at the time of their arrests. At the trial, which was closed to the public, the lawyers denied their guilt and argued that the case was politically motivated. It is a fundamental principle that lawyers should never be identified with their clients or their clients’ causes as a result of discharging their professional functions. The case also gives rise to concerns regarding respect for the right to a fair trial as protected under Article 14 of the International Covenant on Civil and Political Rights.
ICJ WebsiteTajikistan: Government proposes legislation expanding security service powers
On 10 October, media outlet Asia Plus reported that the Government submitted legislative amendments to the law on national security bodies to the parliament. Among other things, the amendments would provide that security service officers be allowed to enter houses without the occupants’ permission in exceptional cases, in particular when there is a real threat of a terrorist attack. Furthermore, the amendments would establish new rules for the use of force in case of a threat of a terrorist attack. Details were not announced.
Media Report (Russian)Turkey: State of Emergency extended
On 11 October, Turkey’s parliament ratified a planned extension of the state of emergency, to run for 90 more days from 19 October, sanctioning a decision by the Cabinet the previous week, which followed the recommendation of the National Security Council issued on 28 September. Opposition Members of Parliament opposed the extension, accusing the Government of “opportunistically” using the coup to go after opponents.
Media Report
Media Report
Media Report
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: ICRC statement to General Assembly on measures to eliminate international terrorism
On 5 October, the International Committee of the Red Cross (ICRC) delivered a statement to the General Assembly on measures to eliminate international terrorism. The ICRC, among other things, stressed that, in its view, the international community must be clear about the need for counter-terrorism activities to be conducted with full respect for the protection afforded to all individuals by international law, in particular IHL and human rights law. The ICRC reiterated that counter-terrorism measures taken by States can have potential adverse effects on humanitarian action, both internationally and domestically. In particular, the ICRC stated that “criminal laws dealing with terrorism should exclude from their scope of application activities that are exclusively humanitarian and impartial”.
ICRC StatementUN: World Day against the Death Penalty focuses on capital punishment for terrorism-related offences
On 10 October, on the occasion of the World Day against the Death Penalty, Secretary-General Ban Ki-moon called the death penalty a cruel and inhumane practice that “has no place in the 21st century”. Globally, 65 countries retain the death penalty for terrorism-related offences and 15 of them have carried out such executions in the last ten years, which was the focus of this year’s World Day. However, as Ban Ki-moon noted, “to be legitimate and effective, counter-terrorism measures, like all security operations, must be anchored in respect for human rights and the rule of law”. On 7 October, the Special Rapporteurs on summary executions, Agnes Callamard, on torture, Juan E. Méndez, and on protecting human rights while countering terrorism, Ben Emmerson, in a press release reminded governments around the world that the imposition of the death penalty is an ineffective deterrent for terrorism, and most times is also an unlawful one. They stressed that the threat of terrorism does not justify departing from international standards for the protection of human rights.
UN News Centre
Special Rapporteurs Press Release
Blog Post
Media Report
UN: Special Rapporteur on freedom of opinion and expression criticizes impact of vague and overly broad counter-terrorism and surveillance legislation
On 20 October, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, presented his fourth report to the General Assembly, a study of global trends in restrictions on freedom of expression. Among the several key areas in which States fall short of their obligation that interferences with the freedom of expression must be prescribed by law in clear and precise terms, Kaye finds that laws intended to combat the threat of terrorism are often extremely vague, and therefore fail to meet the requirement that restrictions on freedom of expression be formulated with precision. Furthermore, the report surveys restrictive measures that have legitimate objectives but are neither necessary nor proportionate, including certain forms of surveillance, forced decryption, Internet shutdowns and efforts to counter violent extremism. In this regard, the Special Rapporteur criticizes States’ overreliance on invocations of “national security” and “public order” to attempt to justify their interference with freedom of expression.
Special Rapporteur Report
Blog Post
UN: Special Rapporteur on counter-terrorism and human rights warns restrictive and rights-violating migration policies may create conditions conducive to terrorism
On 21 October, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, presented his latest report to the General Assembly. Emmerson concluded that “while there is no evidence that migration leads to increased terrorist activity, migration policies that are restrictive or that violate human rights may in fact create conditions conducive to terrorism”. In his report, the Special Rapporteur recommends that States recognize that the vast majority of people fleeing Syria and other affected regions are victims of terrorism, and should not be stigmatized as potential terrorists themselves. “We are here today to correct the misperception that international refugee law is an obstacle when it comes to addressing security concerns”, Emmerson said.
Special Rapporteur Report
OHCHR Press Release
Council of Europe: Venice Commission opinion on Turkey’s lifting of parliamentary immunity
On 14 October, the Council of Europe’s “Venice Commission” (European Commission for Democracy through Law) issued its first Opinion on Turkey after the failed coup on 15 July. The Opinion concerns a constitutional amendment of 12 April 2016 that allows the lifting of parliamentary immunity of those who are prosecuted for criminal cases. Among other things, the Commission stresses that freedom of expression of Members of Parliament is essential for democracy and that the non-violent pursuit of non-violent political goals such as regional autonomy cannot be the subject of criminal prosecution. It further notes that the case law of the European Court of Human Rights shows that Turkey has a problem with safeguarding freedom of expression, “not least with respect to cases considered as propaganda for terrorism”.
Venice Commission Opinion
Media Report
Find 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].