Read the 108th issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels.
The E-Bulletin on Counter-Terrorism and Human Rights provides hyperlinks to full texts of reports, statements, laws, court judgments and legal analysis. It aims at fostering an informed debate on the implications of counter-terrorism measures for the promotion and protection of human rights.
AFRICA & MIDDLE EAST
Egypt: President calls for stronger anti-terrorism laws
Iran: Formation of regional bloc proposed
Israel: Court temporarily halts deportation orders
Tunisia: President’s comments on returning foreign fighters
AMERICAS
USA: Procedural rule concerning remote search warrants updated
USA: Court ruling in Mohamed Mohamud case
USA: Obama Administration releases national security framework report
USA: Doctor testifies regarding al Hamsawi’s operation
USA: The Senate Torture Report
USA: Obama Administration’s final Guantánamo transfers
USA: Law of War Manual updated
USA: Appeals court rejects ACLU’s freedom of information request regarding use of armed drones
USA: Open Society Foundations report on security sector assistance
USA: NSA Olympic surveillance case goes ahead
USA: Obama Administration expands NSA power to share raw signals intelligence
USA: CIA releases new public procedures regarding data collection
USA: Court orders release of Abu Ghraib pictures
USA: Supreme Court begins review of detention of Muslims following 9/11
USA: Obama Administration releases second report regarding drone strikes outside areas of active hostilities
USA: Declassified documents show previously unknown CIA torture
USA: President Trump opens door to potential reestablishment of black site prisons
USA: President Trump’s Executive Order on immigration
USA: President Trump’s changes to the National Security Council and Homeland Security Council
ASIA – PACIFIC
Australia: Law approved enabling post-sentence detention of convicted terrorists
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
Europe: Amnesty International report documents impact of counter-terrorism measures
UK: Le Monde reveals extensive British spying in Africa
UK: All Party Parliamentary Group on Drones commences new inquiry
UK: Attorney General clarifies Government’s understanding of the framework governing use of armed force
UK: Supreme Court rulings in Belhaj, Rahmatullah (No 2) and Al-Waheed
Belgium: Complaint filed before UN Committee Against Torture concerning Guantánamo detention
Bulgaria: Amendments to anti-terror legislation approved
France: Parliament approves extension of the state of emergency
Germany: Government proposes centralization of intelligence and security powers
Turkey: Council of Europe Commissioner for Human Rights finds violations
Turkey: UN Special Rapporteur on torture finds discrepancy between policy and practice
Turkey: Venice Commission publishes opinion on emergency decree laws
Turkey: Human Rights Watch report on Government efforts to silence media
Turkey: European Court of Human Rights cases regarding alleged violations arising out of the response to the July coup
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Security Council resolution on international cooperation to prevent, investigate and prosecute terrorist acts
UN: High Commissioner report on the effects of terrorism on human rights
UN: UNODC publishes manual on preventing radicalization in prisons
Council of Europe: Commissioner for Human Rights Comment on national human rights structures
EU: Court of Justice rules general and indiscriminate retention of electronic communications unlawful
EU: Commission publishes proposal to strengthen Schengen Information System
EU: Court of Justice ruling concerning the relationship between refugee status and accusations of (assisting) terrorism
ICRC: Global survey on humanitarian norms
E-BULLETIN no. 108
AFRICA & MIDDLE EAST
Egypt: President calls for stronger anti-terrorism laws
On 12 December, at the State funeral for 24 Coptic Christians killed in an explosion at St Mark’s Coptic Cathedral complex the previous day, President al-Sisi called for stronger counter-terrorism laws and expressed frustration with the country’s legal system, claiming it makes it difficult to prosecute suspects. On 13 December, Parliament made the first move not only to amend laws, but also to propose the possibility of amending the constitution, in order to allow the military judiciary to look into terrorist crimes.
Iran: Formation of regional bloc proposed
On 11 December, speaker of the Iranian Parliament Larijani proposed the formation of a bloc of Muslim countries to fight terrorism and boost economic cooperation that would include its regional rival Saudi Arabia. At a security summit in Bahrain a week earlier, the leaders of Western-allied Arab Gulf countries agreed on the need to counter Iran’s “destabilizing activities” in the region, and Saudi Arabia had announced the formation of a 34-member “Islamic military alliance” against terrorism nearly a year ago, which excluded Iran.
Media ReportIsrael: Court temporarily halts deportation orders
On 26 January, the Appeals Tribunal issued a temporary order suspending the deportation of five relatives of the alleged perpetrator of an attack on 8 January in Armon HaNaziv. Some days after that attack, 13 relatives of the alleged attacker had received notices from the Minister of the Interior about the intent to revoke their status in Israel based on “information suggesting several of your extended family are suspected of association with ISIS organization and involvement in terrorist activity”. On 25 January, the Minister revoked the status of eleven of those relatives.
Civil society statementTunisia: President’s comments on returning foreign fighters
On 2 December, in an interview with Euronews during a visit to France, President Essebsi said that “jihadis are no longer a threat, and many of them want to return home. We cannot forbid a Tunisian national from returning to his country… We will not put them in jail because we do not have enough space.” The ambiguity of the message raised concerns about the security challenges this may entail, although the presidency issued a statement on 7 December to clarify the President’s stance to assert that, under the 2015 Anti-Terrorism Law No. 26, any person who travelled abroad to commit a terrorist crime is punishable with imprisonment, but that the Constitution protects Tunisian citizens from being stripped of their nationality or from being prevented to return to their country.
Media report
AMERICAS
USA: Procedural rule concerning remote search warrants updated
On 1 December, the revised version of Federal Rule of Criminal Procedure 41 came into effect. The amendment grants courts the jurisdiction to issue remote search warrants when the location of a sought-after device or data has been concealed by technological means, and it allows for the issuance of multi-jurisdictional remote search warrants in certain circumstances. It makes it easier for the Government to seek and get approval for remote searches and the use of network investigative techniques that enable it to install malware on a target computer. Essentially, it allows the Federal Bureau of Investigations to use a single warrant to hack into machines no matter where they may be, including potentially beyond the territory of the United States.
Blog post
Blog post
Blog post
Blog post
Blog post
Media report
USA: Court ruling in Mohamed Mohamud case
On 5 December, the Court of Appeals for the Ninth Circuit released its opinion in United States v. Mohamud, rejecting the challenge to the constitutionality of surveillance under Section 702 of the Foreign Intelligence Surveillance Act. In the case, the Government obtained E-mails from a monitoring point inside the United States that collected E-mails between Mohamud in the United States and another person who was a non-citizen outside the United States in what appears to have involved collection of data pursuant to the ‘PRISM’ surveillance programme. Emphasizing that its ruling applies only to the particular facts of the case, the Court held that when “a search was not directed at a US person’s communications, though some were incidentally swept up in it – [it] does not require a warrant, because the search was targeted at a non-US person with no Fourth Amendment right.” The judgment does, however, emphasize the importance of effective minimization procedures and raises questions about the sufficiency of the internal oversight mechanisms.
Court decision
Blog post
Blog post
Blog post
Media report
Media report
USA: Obama Administration releases national security framework report
On 5 December, President Obama released a series of documents relating to the use of military force, including a 66-page Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations. In brief, the document provides an overview of “key frameworks” related to the use of military force overseas as well as key legal and policy frameworks related to the conduct of hostilities. Although the report contains some new disclosures, it largely repeats earlier speeches and documents, including their mistakes, and thus does not deepen transparency and democratic accountability regarding the issues at hand. Among other things, the report does not offer much specific detail; it does not explain the effectiveness (or lack thereof) of the targeted killing and drone strike programme in furthering peace and security in either target countries or the United States; it does not explain how international human rights law applies to the lethal use of force abroad; it does not provide details of the Administration’s legal reasoning; and it contains only little detail on the implementation of the July Executive Order concerning civilian casualties.
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Media report
Media report
USA: Doctor testifies regarding al Hamsawi’s operation
On 5 December, a doctor testified in the military proceedings against the accused of the 9/11 terrorist attack concerning the treatment for haemorrhoids of Saudi captive al Hamsawi in outpatient-style surgery at the Guantánamo base hospital in October, and not for repair of a torn or prolapsed rectum as his attorney asserts. The latter tried to ask the doctor about the link between the captive’s on-going pain and his treatment in Central Intelligence Agency (CIA) custody a decade or more ago, but the military judge insisted the testimony stick to the aftermath of the procedure at the base hospital. Following his arrest in Pakistan, al Hamsawi was held by the CIA until his transfer to Guantánamo in September 2006. The release of a portion of the Senate Torture Report revealed that the CIA had used quasi-medical techniques called “rectal rehydration” and “rectal re-feeding” on him.
Media reportUSA: The Senate Torture Report
On 7 December, defence attorneys for the accused plotters of the 9/11 attacks urged the military judges to safeguard a copy of the Senate Torture Report on the CIA’s secret prison before the start of Donald Trump’s presidency. On 10 January, the military judge ordered the Department of Defense to preserve a copy, but left undecided whether the attorneys will be allowed to read it. The step bars the Trump Administration from destroying all copies of the report. Meanwhile, on 12 December it had been disclosed that President Obama provided notice of his plan to make his copy of the report part of the presidential record to some in Congress, suggesting the study would be made public in 2028. Two years ago, Senator Feinstein sent eight copies of the full classified Senate study to President Obama, the Attorney General, the secretaries of State and Defense, the directors of the FBI and CIA, the CIA Inspector General and the Director of National Intelligence, asking it be made available within the Executive for use as broadly appropriate to ensure against any return to torture. However, the Justice Department instructed everyone to lock up their unopened and unread copies. A month later, the new Republican chairman of the Senate Select Committee on Intelligence, Burr, asked for all copies to be returned, claiming its transmission was improper, and called on the Administration not to enter the report into the executive’s system of records, as this would make it subject to retention.
Blog post
Blog post
Blog post
Blog post
Media report
Media report
Media report
USA: Obama Administration’s final Guantánamo transfers
In December and the weeks leading up to 19 January, President Obama’s last full day in office, 19 detainees were transferred from Guantánamo Bay to Cape Verde, Oman, the United Arab Emirates and Saudi Arabia, leaving 41 men there: ten detainees who have been charged in military commissions proceedings and 31 others who are held without being charged with or convicted of a crime, five of whom were approved for transfer either by the 2009 Task Force or by the Periodic Review Board. President Trump vowed during his campaign to “load it up with some bad dudes” and a leaked draft of an Executive Order instructs the halting of transfers and raises the possibility of bringing new detainees to Guantánamo Bay.
Media report
Media Report
Media Report
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Blog post
Media report
Media report
Media report
Blog post Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
USA: Law of War Manual updated
On 13 December, the Pentagon announced the launch of a revised version of the Law of War Manual, making significant changes to the section on proportionality in conducting attacks. Among other things, the Department of Defense deleted the provisions in the previous version that indicated that civilians in or proximate to military objectives need not be counted in a commander’s proportionality analysis. The new version of the Manual makes it clear that commanders selecting targets must take into account the anticipated harm to such civilians too and that, in particular, involuntary human shields are fully protected under the proportionality rule.
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
USA: Appeals court rejects ACLU’s freedom of information request regarding use of armed drones
On 20 December, the Court of Appeals for the Second Circuit rejected a Freedom of Information Act request from the American Civil Liberties Union (ACLU) for information about the Government’s use of armed drones for targeted killings. In 2015, the District Court had ruled that seven of 59 documents sought by the ACLU could be made public with redactions. The appeals court rejected the ACLU’s appeal regarding the remaining 52 documents, and reversed the lower court’s judgment regarding the seven documents upon the Government’s cross-appeal. ACLU’s Hina Shamsi expressed disappointment over the Obama Administration’s decision to keep fighting for secrecy on targeted killings, even as the programme is handed over to President Trump.
Court decision
Blog post
Media report
USA: Open Society Foundations report on security sector assistance
In January, the Open Society Foundations published ‘Untangling the Web: A Blueprint for Reforming American Security Sector Assistance’. The report explains that, since the 9/11 terrorist attacks, the United States has spent more than USD 250 billion building up military and police forces around the world, with mixed and sometimes counterproductive impacts, exacerbating local corruption, human rights abuses and terrorism. The report describes the main failures in the system and sets out immediate steps for improving the planning, coordination and implementation of the US’ security-related assistance.
Open Society ReportUSA: NSA Olympic surveillance case goes ahead
On 10 January, the District Court for the District of Utah denied a motion to dismiss by the National Security Agency (NSA), in a case concerning allegations of warrantless surveillance during the 2002 winter Olympic games. The plaintiffs allege their communications devices were searched and seized by the NSA during the Games and that the NSA is currently storing data collected from them and the majority of individuals in the Salt Lake area. The Court refused to dismiss the case on the grounds that the plaintiffs’ assertions are implausible and without factual support, as the NSA had asked in its motion.
USA: Obama Administration expands NSA power to share raw signals intelligence
On 12 January, The New York Times reported on an expansion of the power of the National Security Agency (NSA) under Executive Order 12333 to share globally intercepted personal communications with the Government’s 16 other intelligence agencies prior to applying privacy protections. The rules were signed by the Director of National Intelligence on 15 December and by the Attorney General on 3 January. The new framework does not change or expand communications collection. However, whereas previously the NSA filtered information before sharing intercepted communications with other agencies, applying rules aimed at minimizing privacy intrusions, the new Executive Order puts in place procedures that allow the NSA to share raw, unminimized signals intelligence information for authorized foreign intelligence and counterintelligence purposes.
Guidelines
Blog post
Blog post
Media report
USA: CIA releases new public procedures regarding data collection
On 18 January, the Central Intelligence Agency (CIA) released new, unclassified procedures designed to restrict and streamline the agency’s handling of US person information collected in the course of intelligence activities conducted under Executive Order 12333. The new guidelines, set to go into effect on 18 March, function as a comprehensive update and consolidation of guidelines in place and subject to revision since 1982, which were heavily redacted.
USA: Court orders release of Abu Ghraib pictures
On 18 January, the District Court for the Southern District of New York ruled that the Department of Defense must release several thousands of pictures taken at Abu Ghraib and other detention sites in Iraq and Afghanistan. Advocacy groups including the American Civil Liberties Union (ACLU) have been litigating to obtain their release under the Freedom of Information Act since 2004. The judge wrote that “the executive has failed to articulate the reasons supporting its conclusion that release of the photos would endanger Americans deployed abroad”.
USA: Supreme Court begins review of detention of Muslims following 9/11
On 18 January, the Supreme Court began reviewing a case by Muslims in the United States who were detained in the immediate aftermath of the 9/11 attacks. The men say they were held, between three and eight months, solely on the basis of their identity as Arab Muslims. The Court will review whether the men have the right to sue top US officials including then Attorney General Ashcroft and FBI Director Mueller for their illegal detention. A lower court has ruled in their favour, giving rise to the appeal. The Supreme Court’s ruling is due in June.
Media reportUSA: Obama Administration releases second report regarding drone strikes outside areas of active hostilities
On 19 January, the Director of National Intelligence (DNI) released a report that summarizes the number of military strikes taken by the US Government outside of areas of active hostilities during 2016, including the total number of civilians killed in those operations. It is the second report in a series mandated by a July 2016 Executive Order. The Government reports only 1 “non-combatant death” out of a total of 53 strikes, which according to the DNI does not differ from NGO reports, in contrast to the sharp discrepancies in the previous report. Notably, the report does not include any parts of Libya as an area of active hostilities.
USA: Declassified documents show previously unknown CIA torture
On 19 January, The New York Times reported on newly disclosed documents about the Rendition, Detention and Interrogation Program of the Central Intelligence Agency (CIA), which provide new details about its practices of slamming terrorists into walls, confining them in coffin-like boxes and subjecting them to waterboarding. The documents were declassified as part of a lawsuit against the psychologists James Mitchell and J. Bruce Jessen who designed the programme, brought by detainees represented by lawyers including from the American Civil Liberties Union (ACLU). Another set of documents that are part of the same lawsuit, first published in The Washington Post, expose an internal feud within the CIA regarding the qualifications and ethics of Mitchell and Jessen. Documents disclose that the CIA’s own personnel expressed deep concern about an arrangement that put two outside contractors in charge of subjecting detainees to interrogation methods amounting to torture, then also evaluating whether those methods were working or causing lasting harm. In a rare public appearance on 6 December at the conservative American Enterprise Institute, Mitchell defended his actions, bemoaning the use of the label “torture”.
Media report
Media report
Media report
USA: President Trump opens door to potential reestablishment of black site prisons
On 25 January, The New York Times published a summary of a leaked draft of the Trump Administration Executive Order on “Detention and Interrogation of Enemy Combatants” (later also published in full by The Washington Post) which, among other things, shows that the Administration is seeking to review whether prisons outside the United States, such as the “black site” prisons operated by the Central Intelligence Agency (CIA) where terrorism suspects were detained and tortured in the period after the 9/11 attacks, can be revived. The White House disclaimed the document but Administration officials said it had been circulated among National Security Council staff members for review. The leaked draft also includes halting transfers out of Guantánamo Bay and raises the potential of sending new detainees there, calling for a reassessment of existing directives on how law enforcement agencies should proceed following the arrest of a member of al Qaeda (or associated forces) in determining the propriety of potential military custody. Furthermore, while not called for in the draft Executive Order, the prospect of bringing back torture – one of President Trump’s campaign proposals – hovers over the Order’s direction to review reinstating a CIA interrogation programme. On 30 January, UN Special Rapporteur on torture, Nils Melzer, urged President Trump not to reconsider waterboarding and other methods of torture and ill-treatment used as interrogation techniques.
Draft EO
ICJ statement
UN Special Rapporteur
Media report
Media report
Media report
Media report
Blog post
Blog post
Media report
Blog post
Blog post
USA: President Trump’s Executive Order on immigration
On 27 January, President Trump issued an Executive Order directing federal agencies to block the entry of Syrian refugees indefinitely, and suspend the US Refugee Admissions Program for refugees from all countries for 120 days. The Order also temporarily banned citizens of Syria, Iran, Iraq, Sudan, Yemen, Libya and Somalia from entering the United States until a review of the visa and refugee vetting process occurs and a more stringent alternative is implemented. According to Trump, the list of sanctioned countries are those “that have tremendous terror… countries that people are going to come in and cause us tremendous problems.” The Order gave rise to condemnations from domestic and world leaders and civil society, protests from a large number of State Department officials, the refusal of the acting Attorney General Yates to defend the immigration order in court and several legal challenges. The District Court for the Eastern District of New York granted an emergency motion to stay the removal of immigrants and refugees detained and prevented from entering the US; the District Court for the Eastern District of Virginia issued a temporary restraining order requiring the Government to permit green card holders detained in Dulles International Airport access to counsel and barring their removal for seven days; the District Court for the Western District of Washington granted a stay of removal for two unnamed plaintiffs; and the District Court for the District of Massachusetts granted a temporary restraining order halting the removal of immigrants and refugees. On 22 December, President Obama had announced that it dismantled the National Security Entry-Exit Registration System, a dormant, ineffective profiling programme for visitors from countries with active terrorist groups that was part of the Bush Administration response to the 9/11 attacks. Since leaving office, he has criticized President Trump’s Order, stating his fundamental disagreement with the notion of discriminating against individuals because of their faith or religion.
Media report
Media report
Media report
Media report
Media report
Media report
Media report
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
USA: President Trump’s changes to the National Security Council and Homeland Security Council
On 29 January, President Trump issued National Security Presidential Memorandum 2, concerning the organization of the National Security Council (NSC) and the Homeland Security Council (HSC). Regarding the NSC, the document names who will participate in four layers of meetings: the NSC itself, chaired by the President; the Cabinet-level Principals Committee chaired by National Security Adviser Flynn; the Deputies Committee, which is the senior sub-cabinet interagency forum for national security issues; and coordinating committees at the assistant secretary level. Notable changes include, among other things, a limitation of the roles of the Director of National Intelligence and the Chairman of the Joint Chiefs, who will henceforth only attend the Principals Committee when “issues pertaining to their responsibilities and expertise are to be discussed”, as opposed to being regular members during the Obama Administration. Most controversially, the Order names Trump’s chief strategist, Steve Bannon, as a regular attendee at both the NSC and its Principals Committee in what is viewed as a radical departure from past practice in which Presidents were keen to avoid the appearance of political aides influencing national security.
Media report
Media report
Media report
Media report
Blog post
ASIA – PACIFIC
Australia: Law approved enabling post-sentence detention of convicted terrorists
On 1 December, the Australian Senate approved a law under which convicted terrorists can be kept in prison years after the completion of their sentences if a court believes they are deemed to pose an unacceptable risk of reoffending. It is part of a bundle of counter-terrorism measures that also includes a measure allowing the police to enforce control orders to monitor children as young as 14 years of age if they are thought to be involved in or planning a terrorist act. Prisoners may be held for up to three years after their sentences are completed. After that period, the court can impose an unlimited number of further extensions of up to three years.
Media report
ICJ Australia statement
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
Europe: Amnesty International report documents impact of counter-terrorism measures
On 17 January, Amnesty International published ‘Dangerously Disproportionate: the ever-expanding national security state in Europe’, drawing on human rights analyses drawn from 14 EU Member States. The report warns that sweeping new laws, passed at break-neck speeds, are driving Europe into a deep and dangerous state of permanent securitization, undermining fundamental freedoms and dismantling human rights protections. In several countries, the report details, counter-terrorism measures have been proposed or enacted that have eroded the rule of law, enhanced executive power, undermined judicial controls, restricted freedom of expression and exposed everyone to unchecked government surveillance. The impact on foreigners and ethnic and religious minorities is said to have been particularly profound, and some States are identified as having misused counter-terror laws to target human rights defenders and political activists. Furthermore, with measures focusing ever more on prevention, the report identifies that governments have invested in “pre-crime” initiatives and become increasingly reliant on administrative control orders to restrict people’s freedom of movement and other rights. Moreover, fear of being labelled a security threat or extremist has had a chilling effect, shrinking space for free expression.
AI website
Media report
Blog post
UK: Le Monde reveals extensive British spying in Africa
On 7 and 8 December, Le Monde and The Intercept published new revelations from the Snowden archives, showing that operations by the Government Communications Headquarters (GCHQ), the UK’s surveillance agency, targeted among other things current and former Heads of State, prime ministers, diplomats, military and intelligence chiefs and leading figures in the business and finance industry across Africa, Israeli diplomats, as well as the director of the World Trade Organization, several multinational corporations and a top French businessman. The surveillance involved intercepting communications as they were being beamed between satellites, as well as from mobile phones being used on board Air France flights.
UK: All Party Parliamentary Group on Drones commences new inquiry
On 7 December, the first evidence sessions took place in the All Party Parliamentary Group on Drones’ new inquiry that aims to analyse the emerging technologies of drones, the ways in which the UK works with allies with regard to the use of armed drones, and make recommendations to ensure an appropriate level of transparency and accountability for these operations in Parliament. The inquiry will build on the Joint Committee on Human Rights’ report.
UK: Attorney General clarifies Government’s understanding of the framework governing use of armed force
On 11 January, Jeremy Wright QC MP, the Attorney General of the United Kingdom, gave a speech intended to clarify his Government’s understanding of the international legal framework governing the use of armed force. The Attorney General’s address followed calls from Parliament’s Joint Committee on Human Rights and senior military figures for greater clarification of the concept of imminence and the circumstances under which the Government deems drone attacks abroad are legally justified. The core elements of the policy he advanced are that the use of force is sometimes permissible to defend against an imminent attack, which presupposes the existence of an operational threat; other options for defending against the anticipated attack must be inadequate; and defensive force is permitted against an imminent attack, even if the perpetrators are not State agents, in which case the relevant inquiry is whether the State in which the attack is being planned is unable or unwilling to prevent it. With regard to the meaning of imminence, the Attorney General repeated and endorsed the five criteria for the context-specific evaluation developed by Sir Daniel Bethlehem in 2012, which critically allow for the use of force against threats that are temporally remote, especially if the effects of the threat materializing would be significant. With regard to the “unwilling or unable doctrine”, the UK position now dovetails the United States’, although former Prime Minister Cameron had used the argument before Parliament to justify the UK’s action in Syria in August 2015. The Attorney General’s speech is the first unequivocal confirmation that the UK has adopted the doctrine as being of general application.
Media report
Media report
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
UK: Supreme Court rulings in Belhaj, Rahmatullah (No 2) and Al-Waheed
On 17 January, the Supreme Court issued its ruling in Belhaj and other v Straw and others, in the joint cases involving the appeal of an action brought by Belhaj, a Libyan national, and his spouse against UK authorities for their alleged complicity with US and Libyan authorities in their rendition and torture, and by Rahmatullah, who was detained by UK forces in Iraq before being transferred to the custody of US forces, at whose hands he was allegedly tortured. The Court dismissed the Government’s arguments based on State immunity, as well as the argument that UK courts should refrain from adjudicating on foreign acts of State where doing so would embarrass the UK in its international relations. The ICJ and others intervened in the case. On the same day, the Supreme Court also issued its judgment in Rahmatullah (No 2), which concerns the treatment of Rahmatullah and others by the United Kingdom, unanimously holding that the doctrine of Crown act of State is in principle available as a defence to tort claims arising from the detention and transfer of the claimants by UK forces in Iraq and Afghanistan. In a third decision issued on the same day, the Supreme Court dismissed Al-Waheed’s appeal and allowed in part the Ministry of Defence’s appeal on preliminary issues in two cases where the claimants alleged their internment in Iraq and Afghanistan had been in breach of Article 5 of the European Convention on Human Rights (ECHR). The Court held that the article did not prevent internment in the course of a non-international armed conflict if this was necessary for imperative reasons of security. The court further found that, although the British forces had not complied with the procedural requirements of Article 5(4) of the ECHR, a compliant review process would have been unlikely to have resulted in release. The ICJ was an intervener in the case.
Court decision Belhaj
Court decision Rahmatullah (No 2)
Court decision al Waheed
Media report
Media report
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Blog post
Media report
Blog post
Blog post
Blog post
Blog post
Belgium: Complaint filed before UN Committee Against Torture concerning Guantánamo detention
On 11 January, the European Center for Constitutional and Human Rights (ECCHR) and together with Belgian lawyers submitted an individual communication against Belgium to the UN Committee against Torture on behalf of Mosa Zemmouri. Zemmouri claims to have been detained at Guantánamo Bay from 2002 and 2005 and subjected to brutal beatings as well as sensory deprivation, exposure to extreme temperatures and other forms of psychological and physical abuse. In the communication, it is alleged that Belgian officials were complicit in the abuse, that Belgium knew about the torture but failed to prevent it, and that Belgian authorities subsequently failed to carry out adequate investigations into the crimes.
ECCHR statementBulgaria: Amendments to anti-terror legislation approved
On 14 December, Parliament approved the provisions of a new anti-terrorism act. The law gives the police, army, prosecution and security services sweeping new powers in terrorist cases to wiretap suspects and restrict civil rights. Among other things, the period of permitted wiretapping is extended from six months to three years. Furthermore, in cases of terrorist threats, the Minister of the Interior will be empowered to trigger a national counter-terrorism plan that includes the partial and temporary restriction of the rights of citizens, thus closely resembling a state of emergency, which may only be declared by Parliament. People suspected of terrorist activity may be banned from leaving the country or meeting certain people and the authorities will be allowed to confiscate their documents.
France: Parliament approves extension of the state of emergency
On 14 December, the French Parliament voted overwhelmingly to extend a national state of emergency until 15 July, after the elections. The extension will give the country its longest uninterrupted state of emergency since the 1960s Algerian War.
Media report
Media report (FR)
CNCDH statement (FR)
Germany: Government proposes centralization of intelligence and security powers
On 3 January, the Minister of the Interior advocated consolidating greater intelligence and security powers with the Government, arguing such a step is necessary to protect the country against modern threats posed by terrorism, cyberattacks and an increased number of migrants seeking to enter the country. The proposal met immediate resistance, as much of the country remains deeply wary of centralized power because of its traumatizing history with fascist and communist totalitarian rule, despite growing anxiety over security threats, especially after the attack on a Christmas market in Berlin in December. On 10 January, the interior and justice ministers agreed on increasing surveillance of immigrants deemed suspicious and making it easier to take people into custody for deportation.
Media report
Media report
Media report
Turkey: Council of Europe Commissioner for Human Rights finds violations
On 2 December, the Council of Europe Commissioner for Human Rights published the findings of a visit that he conducted to Turkey in April and in September 2016. The Commissioner found that “numerous human rights of a very large civilian population in South-Eastern Turkey have been violated as a result of curfews imposed and anti-terrorism operations conducted there since August 2015”. Among other things, he highlighted that the curfews imposed since August 2015 were based on administrative decisions, infringing legality requirements. He also points to the destruction in several cities and the huge disproportion when the number of civilians affected is compared with the number of terrorists neutralized and the declared aims behind the curfews. The Commissioner also highlighted the ineffectiveness of investigations into allegations of human rights violations, and expressed deep concern over attempts to vilify human rights defenders, non-governmental organizations and lawyers working on these issues.
Council of Europe websiteTurkey: UN Special Rapporteur on torture finds discrepancy between policy and practice
On 2 December, the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment issued his preliminary observations and recommendations following a visit to Turkey from 27 November to 2 December. The Special Rapporteur notes that although, in principle, Turkey’s institutions and legislation provide sufficient safeguards against torture and ill-treatment, he received persistent allegations suggesting a serious discrepancy between the legal and procedural safeguards put in place and their actual implementation as far as the investigation of alleged violations is concerned. This discrepancy appears to be the result of several coinciding factors, he said, including: the sweeping security measures in response to the failed July coup; recently passed legislation and statutory decrees that have, among other things, extended the period of custody without judicial review and without access to a lawyer; and overburdened courts as a result of the recent dismissals of thousands of judges, prosecutors and other officials.
OHCHR websiteTurkey: Venice Commission publishes opinion on emergency decree laws
On 9 December, the Council of Europe’s European Commission for Democracy through Law, or Venice Commission, adopted an opinion on the Turkish emergency decree laws adopted following the failed coup of 15 July 2016. The Commission concludes that the Turkish authorities were confronted with a dangerous armed conspiracy and had good reasons to declare the state of emergency, but that measures taken by the Government went beyond what is permitted under the Constitution and under international law. Among other things, the Commission also expressed concern that it is unclear whether the Constitutional Court has the power to thoroughly review the constitutionality of the emergency decree laws, and criticizes the provision granting law enforcement bodies the power to detain suspects in custody without judicial review for up to 30 days. The Commission also expressed concern with possible limitation on the access of a detained suspect to a lawyer of his or her choice.
Venice Commission opinion
Council of Europe website
Turkey: Human Rights Watch report on Government efforts to silence media
On 15 December, Human Rights Watch (HRW) released a report in which it documents the Turkish Government’s effort to silence the media on a massive scale in order to prevent it from reporting on or criticizing the Government’s action following the failed coup attempt in July 2016. According to HRW, since the failed coup, the attack on critical journalism has accelerated. Among other things, Turkey is said to be abusing the criminal justice system to prosecute and imprison journalists on false charges of terrorism, insulting of public officials and crimes against the State.
HRW websiteTurkey: European Court of Human Rights cases regarding alleged violations arising out of the response to the July coup
On 8 December, the European Court of Human Rights rejected Zihni v. Turkey, the second application arising out of alleged violations of the European Convention on Human Rights in the aftermath of the attempted coup in July. The Court dismissed the complaint for failure to exhaust available domestic remedies, in line with its decision in November in Mercan v Turkey. At a press conference on 26 January, President of the Court, Raimondi, said that the number of cases from Turkey had dramatically increased since the coup. These include 5,363 cases that were filed over the purge carried out by the Turkish authorities in response to the coup.
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Security Council resolution on international cooperation to prevent, investigate and prosecute terrorist acts
On 12 December, the UN Security Council unanimously adopted a resolution aimed at enhancing and strengthening international cooperation, including by investigators, prosecutors and judges, in order to prevent, investigate and prosecute terrorist acts. Among other things, the Council called upon States to exchange information and cooperate on administrative, police and judicial matters and to enhance cooperation to prevent terrorists from benefiting from transnational organized crime.
UN: High Commissioner report on the effects of terrorism on human rights
On 30 December, the High Commissioner for Human Rights published his report on negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms, in particular the right to life, liberty and security of the person, while paying particular attention best practices and major challenges. Among other things, the High Commissioner highlights the duty of each State to take measures to protect all individuals within its territory from terrorist acts while ensuring that counter-terrorism measures are fully compliant with their obligations under international law. He stresses that effective counter-terrorism measures and the protection of human rights are complimentary and mutually reinforcing objectives, noting that experiences in countries around the world have demonstrated that protecting human rights and ensuring rule of law itself contributes to countering terrorism by creating a climate of trust between the State and those under its jurisdiction. In the context of terrorist acts and counter-terrorism measures, the High Commissioner states, ensuring accountability and combating impunity are key.
UN websiteUN: UNODC publishes manual on preventing radicalization in prisons
On 16 January, the UN Office on Drugs and Crime (UNODC) launched a new Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in Prisons, aimed at strengthening prison management of violent extremist prisoners while upholding prisoners’ human rights. Using existing international standards, in particular the revised UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the Handbook provides guidelines on prison staff recruitment and training; risk management; prevention of radicalization in prison; social reintegration; post-release support; and fair, humane and non-discriminatory treatment of prisoners. It is the first UN guidance tool to address radicalization to violence and violent extremism in prison settings.
UNODC websiteCouncil of Europe: Commissioner for Human Rights Comment on national human rights structures
On 6 December, the Council of Europe’s Commissioner for Human Rights published a Human Rights Comment on national human rights structures: protecting human rights while countering terrorism. The Commissioner stresses that States’ duty to prevent and combat terrorism should not be fulfilled at the expense of human rights standards, and points out the vital role of national human rights structures (NHRSs) in effectively combating terrorism without giving in to fear or undermining human rights. Among other things, he notes that NHRSs play a vital role in the promotion of human rights standards and awareness-raising in the aftermath of terrorist attacks; the importance of their advisory role, which allows them to carry out in-depth human rights impact assessments of draft counter-terrorism laws and policies; and their role in receiving individual complaints.
Council of Europe websiteEU: Court of Justice rules general and indiscriminate retention of electronic communications unlawful
On 21 December, the Grand Chamber of the Court of Justice of the European Union (CJEU) ruled that “general and indiscriminate retention” of E-mails and other electronic communications by governments is illegal and that only targeted interception of traffic and location data in order to combat serious crime, including terrorism, is justified. The ruling comes in response to a challenge to the legality of the UK Government Communications Headquarters (GCHQ) bulk interception of call records and online messages. While situated in the context of the Privacy and Electronic Communications Directive, the judgment sets out principles regarding the interpretation of Articles 7 and 8 of the EU Charter of Fundamental Rights which is applicable generally within the scope of EU law and is recognized as reflecting obligations under the European Convention on Human Rights. In its reasoning the Court did not specifically make a ruling whether the safeguards set down in the Digital Rights Ireland case, which struck down the data retention directive, should be seen as mandatory, although it repeatedly cited the case approvingly, highlighting specific aspects such as the need for prior approval, the need for security and control over data, a prohibition on transferring data outside the EU, and the need for subjects to be able to exercise their right to a remedy.
Court decision
Blog post
Blog post
Blog post
Media report
EU: Commission publishes proposal to strengthen Schengen Information System
On 21 December, the European Commission published a communication proposing to strengthen the operational effectiveness and efficiency of the Schengen Information System. According to the Commission, the amendments are proposed with a view to enhancing the ability of the system to fight terrorism and cross-border crime, improve border and migration management and ensure an effective information exchange between Member States. The proposed changes include among other things facial imaging and palm prints to identify people entering the Schengen area and adding alerts on people denied entry and those whom EU Member States say should be sent home.
Commission websiteEU: Court of Justice ruling concerning the relationship between refugee status and accusations of (assisting) terrorism
On 31 January, the Court of Justice of the European Union (CJEU) issued its judgment in the Lounani case, concerning the question of whether a person who is an alleged terrorist or gives assistance to an alleged terrorist can still claim to be a refugee and, if not, how to define terrorism for these purposes. The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist act as such. The Court held that such a conviction is sufficient to trigger the exclusion clause, which goes beyond terrorist acts as such and includes financing, planning and inciting terrorism. Moreover, assisting with the recruitment, organization or transport of foreign fighters could also fall within the scope of the exclusion clause, as could participation in such activities. In the case, it was considered relevant that the group in question was listed as terrorist by the Security Council and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.
Court decision
Media report
Blog post
ICRC: Global survey on humanitarian norms
On 5 December, the International Committee of the Red Cross (ICRC) published its 2016 People on War report, a global survey on the laws of war that includes some findings on public attitudes, including large differences of opinion that vary according to where people live. One of the most consistent results finds that people who live in war-torn countries are more likely to respond humanely to questions on the laws of war, compared to the populations of the five permanent members of the Security Council plus Switzerland. They are also more likely to believe that the Geneva Conventions “prevent wars from getting worse”. Notably, the prohibition in torture is one area in which conflict-affected countries do not show a higher respect for humanitarian norms.
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].