Read the 86th 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.
Ebulletin-Sep14-Final (download the E-bulletin)
AFRICA & MIDDLE EAST
Ethiopia: UN experts urge end to misuse of anti-terrorism law
Kenya: “Terrorism” suspects claim they were tortured in detention
Egypt: ICJ calls for dropping of “terrorism” charges against human rights defenders
Algeria: : UN Committee finds Algeria responsible for enforced disappearance in “anti-terrorism” operation
Morocco: UN Working Group concerned at human rights violations in countering terrorism
Bahrain: Courts adopt practice of stripping citizenship of persons convicted of terrorism
Syria: Drop all charges against human rights defenders in “terrorism” trial, says ICJ
Syria: Human Rights Council condemns intervention of “foreign terrorist fighters”
Iraq: UN Human Rights Council condemns ISIS human rights abuses
Iraq: UN Committee acknowledges lack of control of Iraqi State on ISIS occupied zones
Jordan: Abu Qatada acquitted for the second time of terrorism charges in retrial, following UK extradition
Saudi Arabia: “Terrorism” convictions continue amid allegations of denial of fair trial rights
AMERICAS
USA: Contradictory legal grounds for US intervention in Iraq and Syria said to revive “war on terror” paradigm
USA: Secret court documents reveal Internet company Yahoo forced to hand metadata to US Government
USA: 2004 legal memos on Bush administration’s secret surveillance programme released
USA: NSA shared data with law enforcement agencies through search engine
USA: UN Committee urges closure of Guantánamo Bay detention facility
USA: CIA rendition torture went “until the point of death”
ASIA & PACIFIC
China: Court sentences three to death penalty for “knives” terror attack
China: Supreme judicial bodies issue interpretative directive on “terrorism”
Pakistan: Human rights organization urge government to act against enforced disappearances
Sri Lanka: UN High Commissioner reports ongoing human rights violations in countering “terrorism”
Indonesia: President orders reconsideration of use of “Guantánamo-like” detention facility
Afghanistan: Agreement to maintain US troops signed by new President
Australia: Draft law on “foreign terror fighters” tabled before Parliament
Australia: Parliament approves draft law enhancing intelligence services powers
New Zealand: Edward Snowden indicates active role of New Zealand in mass surveillance programmes
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: European Court of Human Rights accepts detention under the laws of war
UK: Court of Appeals publishes reasoning for allowing closed “terrorism” trial
UK: Prime Minister announces new counter-terrorism measures
UK: Company questioned on risk of complicity in Guantánamo rights violations
Germany: Minister bans “Islamic State” association from Germany
Germany/USA/UK: US and UK hacked secure Internet providers
France: National Assembly approves new counter-terrorism measures
France: Expulsion of Chechen to the Russian Federation would breach non-refoulement principle, rules European Court of Human Rights
Belgium: Extradition to US of person convicted of “terrorism” offences breached European Convention, rules European Court of Human Rights
Spain: UN experts concerned at use of incommunicado detention in countering terrorism
Turkey/USA: Snowden documents reveal double-sided relationship with NSA
Turkey: European Court rules “terrorism” conviction tainted by fair trial rights violations
Russian Federation: European Court finds Human Rights Convention breached in counter-terrorism operations
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Security Council adopts unanimous resolution on “foreign terrorist fighters”
UN: Human Rights Council resolution expresses concern at use of anti-terrorism laws against civil society
UN: UN Working Group launches global consultation on detention and human rights
UN: Human Rights Council convenes panel on right to privacy in the digital age
UN: Human Rights Council holds panel discussion on use of drones
EU: Commission reports on implementation of new terrorism offences
EU: European Council calls for measures to counter “foreign terrorist fighters”
NATO: Wales summit renews commitment to fight terrorism
Global Counter-Terrorism Forum: Ministers adopt best practices in countering terrorism
E-BULLETIN no. 86
AFRICA & MIDDLE EAST
Ethiopia: UN experts urge end to misuse of anti-terrorism law
On 18 September, six Special Rapporteurs of the UN Human Rights Council issued a statement on Ethiopia. The Special Rapporteurs on the promotion and protection of human rights and fundamental freedoms while countering terrorism (Ben Emmerson); the rights to freedom of peaceful assembly and of association (Maina Kiai); the promotion and protection of the right to freedom of opinion and expression (David Kaye); the situation of human rights defenders (Michel Forst); the independence of judges and lawyers (Gabriela Knaul); and torture and other cruel, inhuman or degrading treatment or punishment (Juan Méndez) called on the “the Government of Ethiopia to stop misusing anti-terrorism legislation to curb freedoms of expression and association in the country, amid reports that people continue to be detained arbitrarily.” The independent experts said that they had received allegations indicating that the anti-terrorism law “is being used to target journalists, bloggers, human rights defenders and opposition politicians in Ethiopia.” They also called on the Government of Ethiopia to “to free all persons detained arbitrarily under the pretext of countering terrorism.”
SRs StatementKenya: “Terrorism” suspects claim they were tortured in detention
On 3 September, fourteen persons charged with terrorism offences and held in the Kamiti Maximum Security Prison alleged that they had been subject to torture and ill-treatment, including beatings. The claims by the fourteen men, among whom four charged in connection with the 2013 Westgate shopping centre terror attack, came after the prison authorities disregarded an order of the court to produce the detainees, purportedly for “security reasons”. According to their lawyers, the detainees “suffered broken bones, dislocations and deep cuts during an incident at the Kamiti prison on August 27” and had not received medical attention.
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Egypt: ICJ calls for dropping of “terrorism” charges against human rights defenders
On 10 September, the ICJ called for the immediate and unconditional release of and dropping of all charges against 23 individuals, most of whom are human rights defenders, arrested on 21 June 2014 during a peaceful protest in Heliopolis, Cairo. The protest, forcibly dispersed by security forces and men in civilian clothes, was organized to call for the revocation of Law No. 107 of 2013, on public meetings, processions and protests, and for the release of all those detained under the Law. The 23 individuals arrested were charged with “participating in an unauthorized demonstration”, “damaging public property” and “demonstrating force with a view to terrorizing citizens”.
ICJ StatementAlgeria: UN Committee finds Algeria responsible for enforced disappearance in “anti-terrorism” operation
On 22 August, the UN Human Rights Committee, considering a communication under the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), expressed the view that Algeria was responsible for the enforced disappearance of Lakhdar Bouzenia on 24 May 1993, the day of his arrest by the police, and on 27 October 1993, during a prison transfer after which his fate had become unknown. The Committee determined that Algeria had violated his right not to be subject to torture or cruel, inhuman or degrading treatment (article 7 of the ICCPR), his right to liberty and security (article 9), and his right to humane treatment in detention (article 10) and his right to be recognized as a person before the law (article 16). The Committee also indicated there had been a violation of the prohibition of torture or cruel, inhuman or degrading treatment in regard to the family members of Lakhdar Bouzenia, because of their anguish at his enforced disappearance. Lakhdar Bouzenia, member of the Front islamique du salut (FIS) elected to Parliament on 26 December 1991, had been charged with “constitution and membership of a terrorist organization”, “threat to the security of the State”, and “spreading of seditious publications”. The trial could not take place due to his “disappearance”.
DecisionMorocco: UN Working Group concerned at human rights violations in countering terrorism
On 10 September, the UN Working Group on Arbitrary Detention presented the report on its visit to Morocco from 9 to 18 December 2013 to the UN Human Rights Council. The Working Group concluded that, in “cases related to State security, such as those involving terrorism, membership in Islamist movements or supporters of independence for Western Sahara, … there is a pattern of torture and ill-treatment by police officers, in particular by agents of the National Surveillance Directorate (DST).” The Working Group reported credible allegations of incommunicado detention and that “Morocco had served as a departure point, a transit country and a destination for illegal extraordinary renditions carried out in the context of the international fight against terrorism.” The UN experts reported that “the Anti-Terrorism Act (No. 03-03) provides for police custody for up to three consecutive periods of 96 hours, with no right to a lawyer, except for a half-hour, monitored visit at the mid-point of those 12 days.” Finally, the report indicated “the use of torture by State officials to obtain evidence or confessions at the stage of initial questioning, in particular in counter-terrorism or internal security cases.”
ReportBahrain: Courts adopt practice of stripping citizenship of persons convicted of terrorism
On 9 September, the Bahrain Center for Human Rights reported that Bahraini authorities and courts are adopting a practice of revoking citizenship of human rights defenders and opposition members convicted of “terrorism” offences. The human rights organization reported that, on 6 August 2014, the Fourth High Criminal Court sentenced nine Bahraini citizens to several sentences of imprisonment and revocation of their citizenship, after having convicted them of “spying for the Iranian National Guard, forming a terrorist organization and smuggling weapons into Bahrain.” According to the human rights organization, the sentence was based on “Article (2) of Decree Law No. (20) of 2013 which protects society from terrorist acts.”
NGO StatementSyria: Drop all charges against human rights defenders in “terrorism” trial, says ICJ
On 23 September, the ICJ called on the Syrian authorities to request that all pending criminal charges against Mazen Darwish, Hussein Gharir and Hani Al-Zitani be quashed, and to release the three prominent Syrian human rights defenders immediately and unconditionally. They had been charged before the Anti-Terrorism Court, a special court, under article 8 of Law No. 19 of July 2012 on combatting terrorism (the Anti-Terror Law) with “promoting acts of terrorism”, because of their human rights work. The ICJ called this trial a “mockery of justice” and reported that Mazen Darwish, Hussein Gharir and Hani Al-Zitani, like other detainees, had been denied even the basic elements of fair trial rights, including the right to be presumed innocent, the right to challenge the lawfulness of detention, the rights to defence and the right to appeal. Mazen Darwish, Hussein Gharir and Hani Al-Zitani were held in incommunicado detention for nine months, without access to their families or lawyers. The ICJ believes that they were subjected to enforced disappearance and torture and other ill-treatment while in AFI custody.
ICJ Statement UN Statement OHCHR Report
Syria: Human Rights Council condemns intervention of “foreign terrorist fighters”
On 26 September, the UN Human Rights Council adopted a resolution on the situation in Syria, in which it strongly condemned “the intervention in the Syrian Arab Republic of all foreign terrorist fighters and those foreign combatants fighting on behalf of the regime, particularly militia groups from the region,” and expressed “deep concern that their involvement, and that of other militias like the Shabbiha, further exacerbates the deteriorating human rights and humanitarian situation, which has a serious negative impact on the region.” On 28 August, media outlets reported that at least four hostages in the hands of the Islamic State in Syria had subject to “waterboarding”, form of torture in which the victim is subject to near-drowning.
Iraq: UN Human Rights Council condemns ISIS human rights abuses
On 1 September, the Human Rights Council adopted a resolution, without a vote, condemning “in the strongest possible terms the systematic violations and abuses of human rights and violations of international humanitarian law resulting from the terrorist acts committed by the so-called Islamic State in Iraq and the Levant and associated groups taking place since 10 June 2014 in several provinces of Iraq, which may amount to war crimes and crimes against humanity, and strongly condemns in particular all violence against persons based on their religious or ethnic affiliation, as well as violence against women and children.” The Human Rights Council “requested the Office of the United Nations High Commissioner for Human Rights to urgently dispatch a mission to Iraq to investigate alleged violations and abuses of international human rights law committed by the so-called Islamic State in Iraq and the Levant and associated terrorist groups, and to establish the facts and circumstances of such abuses and violations, with a view to avoiding impunity and ensuring full accountability.”
Resolution UN Statement HCHR Statement Press Article
Iraq: UN Committee acknowledges lack of control of Iraqi State on ISIS occupied zones
On 29 August, the UN Committee on the Elimination of Racial Discrimination published its concluding observations on the compliance by Iraq with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee noted “the persistence of terrorist attacks and the recent intensification of clashes between the Iraqi armed forces and the terrorist group calling itself the ‘Islamic State (IS)’,” with thousands of civilians killed and over 650,000 persons displaced. Based on this information, the Committee asserted that “the conflict severely restricts the State party’s control over important parts of its territory and is, consequently, unable to ensure the full application of the Convention. Taking into consideration the longstanding human rights issues in the State party, the Committee is particularly concerned that the ongoing conflict has a grave impact on a variety of minority groups. It reminds the State party that it bears the primary responsibility to protect all persons on its territory without discrimination in accordance with the Convention.”
Concluding ObservationsJordan: Abu Qatada acquitted for the second time of terrorism charges in retrial, following UK extradition
On 24 September, a military court acquitted, for lack of sufficient evidence, Omar Mahmoud Mohammed Othman, also known as Abu Qatada, of terrorism charges in his retrial for alleged complicity in a plot to launch a bombing attack directed at Israeli, United States and other Western tourists at millennium celebrations in 2000. He had previously been convicted and sentenced in absentia to death, later commuted to life imprisonment with hard labour. He was immediately released as there were no further charges against him. Omar Othman was extradited on 7 July 2013 pursuant to a recently ratified Treaty on Mutual Legal Assistance in Criminal Matters between the UK and Jordan, after the cleric himself had voluntarily accepted the extradition. His transfer to Jordan had previously been blocked by the European Court of Human Rights on the grounds that he would risk exposure to flagrant denial of a fair trial. The UK authorities have since declared that they will not allow him to enter national territory.
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Saudi Arabia: “Terrorism” convictions continue amid allegations of denial of fair trial rights
On 3 September, 24 persons were convicted in a special court on charges related to creation of a terrorist group; planning of attacks against Saudi Arabia and Bahrain; financing terrorism; embracing “deviant ideology”; disobeying the king; using the media to support terrorism; providing shelter people sought by the State; and training for combat. They were sentenced to terms of imprisonment from two to 27 years. The previous day, Saudi authorities arrested and detained 88 people for “plotting “terrorist” attacks at home and abroad,” On 10 September, Human Rights Watch documented that cases of seven men, two of whom were sentenced to death before the Specialized Criminal Court dealing with terrorism cases “reveal flagrant due process violations, including broadly framed charges that do not resemble recognizable crimes, and denial of access to lawyers at arrest and during their long pre-trial detention, making it almost impossible to prepare cases for trial. At all four trials, the court quickly dismissed without investigation allegations of torture and admitted as evidence confessions that defendants said were coerced.”
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AMERICAS
USA: Contradictory legal grounds for US intervention in Iraq and Syria said to revive “war on terror” paradigm
On 10 September, President Barack Obama announced in a public address that the United States would form and lead a global coalition to fight against the armed group, termed by the President a “terrorist organization”, ISIL. The President announced a campaign of airstrike “against these terrorists,” and “support to forces fighting these terrorists on the ground.” Following the speech, the US initiated airstrikes in Iraq and in Syria. As to the legal ground for these military actions under domestic law, an anonymous senior administration official pointed at the Authorizations for Use of Military Force (AUMF), passed by Congress after the 9/11 attacks, “because the Islamic State has its roots in an al-Qaeda affiliated group founded in Iraq in 2003, even though it split from al-Qaeda earlier this year.” The US Ambassador to the UN, Samantha Power, also told the Security Council that the attacks were justified under “the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”
President Speech US Amb. Letter NGO Statement Press Article
USA: Secret court documents reveal Internet company Yahoo forced to hand metadata to US Government
On 11 September, Yahoo Inc. published a set of documents, whose declassification was authorized by the Foreign Intelligence Surveillance Court, revealing that the Internet company had been unsuccessfully fighting against the US government to avoid surrendering large amounts of their customers’ metadata. The document also revealed that, once the legal dispute had been resolved in favour of the government, “it threatened the company with fines of $250,000 a day if it did not immediately comply with a secret court order to turn over the data.” Yahoo’s legal challenges were against the Protect America Act 2007 that temporarily legitimized portions of the secret and warrantless surveillance programme initiated by the administration of former President George W. Bush. This was subsequently superseded by the Foreign Intelligence Surveillance Act (Amendments) 2008. Yahoo declared that they challenged the government as they viewed the surveillance programme “as unconstitutional and overbroad surveillance.”
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USA: 2004 legal memos on Bush administration’s secret surveillance programme released
On 6 September, following a Freedom of Information Act lawsuit, the Justice Department released two 2004 legal memoranda by then-Assistant Attorney General Jack Goldsmith “offering the fullest public airing to date of the Bush administration’s legal justification for the warrantless wiretapping of Americans’ phone calls and e-mails — a program that began in secret after the 2001 terrorist attacks.” In the memoranda, it is held that the US President has “has inherent constitutional authority” to monitor conversations, even of US citizens, without a warrant, “an authority that Congress cannot curtail.” Jack Goldsmith argued that the 2001 Authorization for the Use of Military Force (AUMF) provided “express authority” for the secret surveillance programme of the Bush administration, named “Stellar Wind,” as this was part of the authorization to use “all necessary and appropriate force.” Goldsmith further stated that the position was consistent with the US Supreme Court precedent.
USA: NSA shared data with law enforcement agencies through search engine
On 25 August, The Intercept published documents provided by whistleblower and former NSA agent Edward Snowden revealing that the US National Security Agency “is secretly providing data to nearly two dozen U.S. government agencies with a ‘Google-like’ search engine built to share more than 850 billion records about phone calls, emails, cellphone locations, and internet chats.” The search engine, called “ICREACH,” is reportedly at the disposal of 23 US agencies, among which are the FBI, the Drug Enforcement Administration, the CIA and the Defense Intelligence Agency. According to the documents, the search engine contains “information on the private communications of foreigners and, it appears, millions of records on American citizens who have not been accused of any wrongdoing.” The Intercept reported that the Office of the Director of National Intelligence “confirmed that the system shares data that is swept up by programs authorized under Executive Order.”
Press ArticleUSA: UN Committee urges closure of Guantánamo Bay detention facility
On 29 August, the UN Committee on the Elimination of Racial Discrimination published its concluding observations on the compliance by the United States with their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Among their observations, the UN independent experts, “[w]hile welcoming the commitment made by the President of the United States to close the detention facilities at Guantanamo Bay in January 2009, [remain] concerned that non-citizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system and at the risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The Committee urged the US to end the system of detention at Guantánamo and to ensure respect for the right of detainees to a fair trial.
Concluding ObservationsUSA: CIA rendition torture went “until the point of death”
On 7 September, The Telegraph reported declarations of two anonymous “security” sources the practices of torture by the CIA in their rendition, interrogation and secret detention programme. Referring to the practice of waterboarding, one of the sources was quoted saying: “They weren’t just pouring water over their heads or over a cloth, … [t]hey were holding them under water until the point of death, with a doctor present to make sure they did not go too far. This was real torture.” The US Senate Intelligence Committee has announced that it would release its report on the programme in a couple of weeks. On 29 August, ten victims of the CIA rendition programme signed a letter to President Barack Obama pleading for the declassification of the report.
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ASIA – PACIFIC
China: Court sentences three to death penalty for “knives” terror attack
On 12 September, three persons of Uighur ethnicity, Iskandar Ehet, Turgun Tohtunyaz and Hasayn Muhammad, were sentenced to death after having been convicted of the charges of “leading a terrorist organization and intentional homicide.” They were implicated in a knife attack last March at Kunming station (Yunnan), where 31 people were killed and 141 injured. A fourth person, Patigul Tohti, “was jailed for life for taking part in the attack as well as intentional homicide, because she was pregnant at the time of her detention.” On 9 September, state media reported that the Chinese government was offering monetary rewards to “terrorism” informants in its western Xinjiang region.
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China: Supreme judicial bodies issue interpretative directive on “terrorism”
On 21 September, the Minister of Public Security published on its website a judicial directive of 9 September by the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security on the interpretation of terrorism offences. The document says that “those found to have started terrorist organizations or training camps, recruited new members, or indoctrinated others with religious extremism for the purpose of terror will be convicted of “organizing, leading and participating terrorist organizations”.” Furthermore, “[p]ublishing and distributing books, audio and video products, and other materials that contain religious extremism and terror content will be covered under ‘inciting secession’ laws”, as will be spreading messages of “religious extremism” via internet, emails and instant messaging. The directive indicates that “terrorism” pranks must be prosecuted under the offence of “faking and spreading terrorism information.”
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Pakistan: Human rights organization urge government to act against enforced disappearances
To mark the International Day of the Victims of Enforced Disappearances on 30 August, the ICJ, Amnesty International, and Human Rights Watch urged Pakistan’s government to end the practice of state agencies abducting people throughout the country without providing information about their fate or whereabouts. The human rights organizations criticized the passing of the “Protection of Pakistan Act, 2014, which facilitates enforced disappearances by retrospectively legitimizing detention at undisclosed locations and providing immunity to all state agents acting in ‘good faith.’ These steps perpetuate a troubling culture of impunity in Pakistan, casting grave doubts on the government’s seriousness about ensuring justice and protecting human rights.”
NGOs StatementSri Lanka: UN High Commissioner reports ongoing human rights violations in countering “terrorism”
On 22 September, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, provided an oral update to the UN Human Rights Council on promoting reconciliation, accountability and human rights in Sri Lanka. The High Commissioner reported that Sri Lankan authorities had requested, on 21 March “the proscription of 16 Tamil organisations and 424 individuals pursuant to UN Security Council Resolution 1373” and that these included “many mainstream Tamil diaspora organisations which have been actively engaged with the Human Rights Council and international human rights mechanisms.” The High Commissioner found that “this step will have far-reaching and negative impacts on freedom of expression and association and efforts for reconciliation in the country.” Furthermore, the High Commissioner, despite remarking general progress in the release of detainees, found that “[n]ew cases of arbitrary arrest and detention under the Prevention of Terrorism Act (PTA) have continued to be reported”, among which those of “an outspoken activist on disappearances Ms. Balendran Jeyakumari together with her 13-year-old daughter; Mr. Ruki Fernando and Catholic priest Father Praveen. The High Commissioner [expressed concern] that to date Ms. Jeyakumari remains in detention without charge under the PTA.”
HCHR Oral UpdateIndonesia: President orders reconsideration of use of “Guantánamo-like” detention facility
On 10 September, President Susilo Bambang Yudhoyono ordered the National Counterterrorism Agency (BNTP) to reconsider its decision to transfer “hard-core terrorism convicts” from ordinary prisons to a special detention facility at the International Peace and Security Center (IPSC) in Sentul, West Java. President Yudhoyono, who had recently visited the detention facility, found that the special detention facilitation should not be located at that site. Reportedly, the centre had been compared to the US Guantánamo Bay detention camp and is guarded by the military. The transfers are supposedly part of a “deradicalization programme, and as a preventive measure against any efforts by the convicts to recruit non-terror inmates into their ranks”. The person responsible for the detention centre, Mr Ansayaad, said that this programme cannot be run “in penitentiaries, as there have been cases in which guards have been persuaded to support the terrorists.”
Press ArticleAfghanistan: Agreement to maintain US troops signed by new President
On 30 September, the Afghan government and the United States signed an international agreement that allows 9,800 US soldiers to remain in the country after 2014 “to help train, equip and advise Afghan military and police forces,” and to maintain certain unspecified bases. The agreement reportedly shields US soldiers and military personnel from prosecution under Afghan law. On 30 May, The Guardian had reported that, according to Pentagon officials, this decision “is likely to mean two more years behind bars for America’s most secret detainee population,” referring to the fifty non-Afghan citizens who are currently detained in the Detention Facility in Parwan near the Bagram military base.
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Australia: Draft law on “foreign terror fighters” tabled before Parliament
On 24 September, the Australian Government introduced before Parliament the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill. The draft legislation would introduce the criminal offence of entering or remaining in “a “declared area” where the foreign minister is satisfied a terrorist organisation is engaged in hostile activity.” There would be exceptions for “legitimate” purposes, “such as providing humanitarian aid, in an official capacity for Australia or the United Nations, reporting on news events or visiting family.” The offence will carry a maximum penalty of ten years of imprisonment. Furthermore, the draft law will introduce a criminal offence of “advocating terrorism” applicable to those who “intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence and the person is reckless as to whether another person will engage in or commit a terrorist act.” This offence carries a maximum penalty of five years of imprisonment. The draft law appears to have the approval of the opposition, the Labour Party.
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Australia: Parliament approves draft law enhancing intelligence services powers
On 1 October, the House of Representatives passed into law the National Security Legislation Amendment Bill (No.1) 2014. The law aims to modify several provisions of Australia’s counter-terrorism legislation, in particular in the domain of internet surveillance. The legislation modifies the definition of “computer” to extend to “one or more computer systems; or … one or more computer networks; or … any combination of the above,” an amendment which rights proponents have criticized as overly broad and as a means to authorize mass surveillance by the intelligence services (ASIO). Furthermore, the law introduces a criminal offence of communicating information that has originated from the ASIO intelligence agency via leaks or whistleblowers. Civil society representatives have alleged that this provision may risk violation of the freedom of expression, including by the media
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New Zealand: Edward Snowden indicates active role of New Zealand in mass surveillance programmes
On 15 September, Edward Snowden, in an authored piece on The Intercept, accused the New Zealand surveillance agency, the Government Communications Security Bureau (GCSB) of initiating and carrying out since 2012 a surveillance programme called “Speargun” together with the US National Security Agency. Following denials by New Zealand Prime Minister, John Key, in the wake of elections, Edward Snowden declared that: “any statement that mass surveillance is not performed in New Zealand, or that the internet communications are not comprehensively intercepted and monitored, or that this is not intentionally and actively abetted by the GCSB, is categorically false. If you live in New Zealand, you are being watched.” Referring to his own work experience when based in Hawaii, Snowden stated that “[t]he GCSB, whose operations he is responsible for, is directly involved in the untargeted, bulk interception and algorithmic analysis of private communications sent via internet, satellite, radio, and phone networks.” Furthermore, he alleged that the New Zealand agency provides “access to the communications of millions of New Zealanders to the NSA at facilities such as the GCSB station at Waihopai, and the Prime Minister is personally aware of this fact.”
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EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: European Court of Human Rights accepts detention under the laws of war
On 16 September, the Grand Chamber of the European Court of Human Rights ruled that UK could not be held responsible for violations of the European Convention on Human Rights, particularly the right to life, to right be free from torture and inhuman and degrading treatment and the right to liberty, in the case of Tarek Resaan Hassan, an Iraqi national. captured by UK military forces on 23 April 2003. Tarek Hassan was detained him in Camp Bucca (Iraq) and apparently released him on 2 May 2003, later was found dead on 1 September 2003. The Court held that Tarek Hassan was captured as “a suspected combatant or a civilian posing a threat to security” but released as soon as it was clear that the suspicion was unfounded. The Court ruled that there was no evidence that he had been ill-treated while in detention and there was no link between the detention and his death. The Court further ruled, by a vote of thirteen against four, that the European Convention on Human Rights did not prohibit the detention of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions, in the context of an international armed conflict, even in the absence of a derogation by the State from ECHR. The Court stated that the procedural guarantees of the right to information on grounds of detention and habeas corpus under the European Convention, “must … be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law.” Based on this reasoning, the Court found that the detention of Tarek Hassan was lawful under article 5 ECHR.
JudgmentUK: Court of Appeals publishes reasoning for allowing closed “terrorism” trial
On 24 September, the Court of Appeal published its open judgment explaining its decision of 12 June to allow the trial behind closed doors of Erol Incedal and Mounir Rarmoul-Bouhadjar for “preparation of terrorist acts” and “collection of information” and “possession of false identity documents with improper intention.” The Court held that “there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court,” as the authorities “might be deterred from continuing with prosecution,” if the trial were open. The Court made arrangements through which the opening and final moments of the trial could be held in open court. A small group of journalists will be able to be accredited to follow part of the closed hearings, but will not be able to carry notes outside of the courtroom for the duration of the trial. The Court, however, ruled that it found no reason to not allow publication of the names of the defendants.
JudgmentUK: Prime Minister announces new counter-terrorism measures
On 1 September, Prime Minister David Cameron, in a speech before the House of Commons, announced new counter-terrorism measures to be introduced before Parliament. The Prime Minister said that the Government would “introduce specific and targeted legislation providing the police with a temporary power to seize a passport at the border, during which time they will be able to investigate the individual concerned.” He also announced that the Government would work on proposals to introduce “a targeted, discretionary power to allow us to exclude British nationals from the UK.” He also announced the enactment of “new powers to add to our existing terrorism prevention and investigation measures.” The Prime Minister added, “if there is any judgment that threatens the operation of our existing powers, we will introduce primary legislation immediately so that Parliament, not the courts, can determine whether it is right that we have this power.” The Liberal Democrat party, in coalition Government with the Tories, reportedly has reservations on the announced measures. A draft law has not been tabled before Parliament yet.
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UK: Company questioned on risk of complicity in Guantánamo rights violations
On 31 August, the human rights organization Reprieve submitted a “dossier of evidence to the UK’s responsible business watchdog, the National Contact Point for the OECD Guidelines (UK NCP)” arguing that cleaning and other logistical services contracted by the US to the UK company G4S for the detention centre at Guantánamo Bay may put the firm in situations of complicity with human rights violations. Reprieve asked for more clarity on the terms of the contract and urged the Government to demand answers. The human rights organization argues that “by providing ‘essential’ services at the prison, G4S will be contravening British government policy that the prison must be closed, as well as the OECD’s guidelines for responsible business conduct.”
NGO Statement OECD Guidelines Press Article
Germany: Minister bans “Islamic State” association from Germany
On 12 September, the Federal Minister of the Interior, Thomas de Maizière, issued an order, under the Act Governing Private Associations, effectively banning the “terrorist organization Islamic State, also known as the Islamic State in Iraq and Syria (ISIS) or Islamic State in Iraq and the Levant (ISIL)” from Germany. The organization is considered a “foreign association” under the law. The ban was motivated by the fact that the organization “is directed against the constitutional order and the concept of international understanding.” The ministerial order “prohibits the use of the organization’s symbols in public, in gatherings or in publications, audio or video recordings, images or representations.”
Minister Statement Press Article
Germany/USA/UK: US and UK hacked secure Internet providers
On 14 September, the Intercept and Der Spiegel revealed that the US National Security Agency (NSA) and the UK Government Communications Headquarters (GCHQ) have put under surveillance and hacked a number of Internet provider companies in Germany, including Deutsche Telekom, Netcologne and autonomous service provides, including the German satellite communications company Stellar CPS. Employees of this last company have been themselves placed under surveillance. By accessing data of these providers, these secret services can have access and control over vast amounts of communications across the globe. Furthermore, the NSA has been reported to maintain a programme called Treasure Map, whose purpose is “to create an “interactive map of the global internet” in ‘almost real time’.”
Press ArticleFrance: National Assembly approves new counter-terrorism measures
On 18 September, the National Assembly approved and passed to the Senate a draft law on Strengthening provisions on the fight against terrorism. Under the draft law, any French citizen may be subject to a prohibition on leaving the national territory for six months, renewable up to a maximum term of two years, where there are reasonable grounds to believe that he or she is planning to travel abroad to participate in terrorist activities, war crimes or crimes against humanity or to go to places where terrorist groups are operating in conditions likely to threaten French public security upon return. The law introduces, among other provisions, new powers to limit personal contacts of persons convicted of terrorism related offences who are subject to an obligation to reside in a certain place, and would extend the investigatory powers in cases of prosecution of the offence of glorification of terrorism.
Draft Law (F) Press Article (E)
France: Expulsion of Chechen to the Russian Federation would breach non-refoulement principle, rules European Court of Human Rights
On 4 September, the European Court of Human Rights ruled that the expulsion of two Russian citizens, resident in Chechnya, back to their country would expose them to a risk of being subject to inhuman or degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights. The two persons, M.V. and M.T., a couple, fled Chechnya after having been interrogated and allegedly subjected to torture by militia personnel associated with of Chechen President Ramzan Kadyrov. The militia members were looking for the whereabouts of the uncle of M.V. who had been a member of the Chechen rebellion group from 2000 to 2006. M.V and M.T were denied asylum in France.
Judgment (F)Belgium: Extradition to US of person convicted of “terrorism” offences breached European Convention, rules European Court of Human Rights
On 4 September, the European Court of Human Rights ruled that Belgium had breached the right of Nizar Trabelsi not to be exposed to a risk of inhuman or degrading treatment or punishment by extraditing him to the United States where he risks being subject to an irreducible sentence of life imprisonment following trial. The US sought his extradition to answer of the charges of “conspiracy to kill US nationals outside the US,” “conspiracy and attempt to use of weapons of mass destruction,” “conspiracy to provide material support and resources to a foreign terrorist organization” and “providing material support and resources to a foreign terrorist organization.” The Court also found that Belgium had violated its obligations under article 34 ECHR for having extradited Nizar Trabelsi despite the interim measure issued by the Court not to proceed with the extradition. Nizar Trabelsi was convicted by the Brussels Regional Court on 30 September 2003 and sentenced to ten years of imprisonment for “attempting to bomb the Kleine-Brogel army base, forgery, and instigating a criminal conspiracy to attack persons and property.” He completed these sentences on 23 June 2012. He has also been sentenced in absentia in Tunisia by a military court to ten years of imprisonment for “belonging to a terrorism organization abroad in peacetime.”
Spain: UN experts concerned at use of incommunicado detention in countering terrorism
On 12 September, the UN Working Group on Enforced and Involuntary Disappearances presented the report of its mission to Spain from 23 to 30 September 2013. The UN experts reported that information was received “about isolated cases of disappearance during the 1970s and 1980s, in the context of efforts to combat terrorism.” However, it acknowledged and emphasized “that, unlike other countries, Spain responded to terrorist violence without systematically resorting to enforced disappearance.” The Working Group underlined the existence of a system of incommunicado detention “for up to 5 days in any case and up to 13 days [for people] suspected of belonging to armed gangs or having links with gangs or being involved in terrorist offences,” without access to a lawyer of their choice or to talk to a lawyer in private, “or to inform a member of their family or another person of their choice that they have been detained or where they are being held, or to be examined by a doctor of their choice.” The UN independent experts called on Spain to repeal this detention regime.
ReportTurkey/USA: Snowden documents reveal double-sided relationship with NSA
On 31 August, documents provided by whistleblower and former NSA agent Edward Snowden and published by Der Spiegel and The Intercept revealed that the US National Security Agency (NSA) had in the past “delivered its Turkish partners with the mobile phone location data of PKK leaders on an hourly basis. The U.S. government also provided the Turks with information about PKK money flows, and the whereabouts of some of its leaders living in exile abroad.” Meanwhile, it is alleged, the US government had directed the NSA to conduct surveillance on the Turkish leadership. Reportedly, “the CIA had established a “Sigint,” or signals intelligence, partnership with Turkey dating back to the 1940s.”
Press Article 1 Press Article 2
Turkey: European Court rules “terrorism” conviction tainted by fair trial rights violations
On 23 September, the European Court of Human Rights ruled that Turkey had breached the right to a fair trial of Cevat Soysal, who had been convicted in June 2002 of membership of the PKK and sentenced to eighteen years and nine months’ imprisonment. The Court held that phone recordings obtained illegally “played an important role in the body of evidence assessed by the first-instance court” and “the decision making procedure applied in the present case failed to comply with the requirements of adversarial proceedings and equality of arms, or to incorporate adequate safeguards to protect the interests of the applicant.” The Court also found that the domestic courts erred in not allowing and not providing reasoning for the refusal to admit the testimony for the defence of several witnesses, including Abdullah Öcalan.
JudgmentRussian Federation: European Court finds Human Rights Convention breached in counter-terrorism operations
On 18 September, the European Court of Human Rights ruled that the State had violated the right to life of Apti Zaynalov, kidnapped in 2009, and of Ruslan Baskhanov, Magomed Khamzatov, Kharun Vezirov, Askhab Vezirov, Aslambek Isayev, Daud Nuraliyev, Khalid Nuraliyev, Iles Khamstkhanov, Dzhandar Ismailov, Dzhalil Ismailov, Said-Ibragim Sangariyev, Idris Sangariyev, Saykhan Nutayev, Aslanbek Saltuyev, Usman Salamov, Idris Akhmatov and Imran Dashtayev, all of whom were apprehended in the framework of security operations in Chechnya between 2001 and 2006. All of the persons concerned were presumed to be dead in light of the prolonged enforced disappearance to which they had allegedly been subjected. The Court also held that the enforced disappearances amounted to a grave violation of the right to liberty and security under article 5 of the European Convention on Human Rights (ECHR), and caused inhuman and degrading treatment to their family members in breach of article 3 ECHR. The Court also ruled that the investigations into the enforced disappearance had been ineffective, in breach of the procedural requirements of article 2 ECHR and of the right to an effective remedy under article 13 ECHR.
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Security Council adopts unanimous resolution on “foreign terrorist fighters”
On 24 September, the UN Security Council adopted unanimously resolution 2178 (2014) on foreign terrorist fighters. The Council reaffirmed the obligation of States to “ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law, underscor[ed] that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort.” The resolution defined “foreign terrorist fighters” as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict.” The Security Council tasked all UN Member States to “prevent the movement of terrorists or terrorist groups by effective border controls, … ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decide[d] that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense.”
UN: Human Rights Council resolution expresses concern at use of anti-terrorism laws against civil society
On 26 September, the UN Human Rights Council adopted a resolution on civil society space in which it expressed deep concern that, “in some instances, domestic legal and administrative provisions, such as national security and counter-terrorism legislation, and other measures, such as provisions on funding to civil society, have sought to or have been misused to hinder the work and endanger the safety of civil society in a manner contrary to international law.” The Council reminded States “of their obligation to respect and fully protect the civil, political, economic, social and cultural rights of all individuals, inter alia, the rights to freedom of expression and opinion and to assemble peacefully and associate freely, online as well as offline, including for persons espousing minority or dissenting views or beliefs, and that respect for all such rights, in relation to civil society, contributes to addressing and resolving challenges and issues that are important to society … .”
ResolutionUN: UN Working Group launches global consultation on detention and human rights
On 1 and 2 September, the UN Working Group on Arbitrary Detention convened a meeting of experts in Geneva to launch a global consultation on the “the draft principles and guidelines on the right of anyone deprived of liberty to challenge the lawfulness of his or her detention before court”. The Working Group chairman, Mads Andenas, stated that “special attention will be paid to the obstacles faced in bringing forth a court challenge by asylum-seekers and migrants, children, persons with disabilities, and those detained for counter-terrorism, national security or intelligence gathering purposes.”
Report Consultation UN Statement
UN: Human Rights Council convenes panel on right to privacy in the digital age
On 12 September, the UN Human Rights Council held a panel discussion on “the right to privacy in the digital age.” In this panel, States and panellists addressed the report of the Office of the High Commissioner for Human Rights. Questions were raised during the discussion on the issue of the application of the International Covenant on Civil and Political Rights to extraterritorial surveillance and on oversight mechanisms. Panellists and several human rights organizations, including the ICJ, issued a statement underlining the “threats to privacy and other human rights engendered by electronic surveillance, and calling for the establishment of a UN mechanism on the issue” of the right to privacy.
Report UN Statement NGOs Statement
UN: Human Rights Council holds panel discussion on use of drones
On 22 September, the UN Human Rights Council held a “panel discussion on ensuring the use of remotely piloted aircraft or armed drones in counterterrorism and military operations in accordance with international law, including international human rights and humanitarian law.” The ICJ representative on the Panel stressed that “States have inappropriately used the war paradigm to contextualize counter-terrorism operations such that armed drones are not always used in situations of armed conflict within the meaning of international humanitarian law.” Several human rights organizations, including the ICJ, sent an open letter to the Human Rights Council urging it to “undertake several steps towards ensuring transparency, compliance with international law, meaningful oversight, effective remedies for victims and effective investigations, tracking and response to civilian harm.”
UN Statement NGOs Statement ICJ Statement
EU: Commission reports on implementation of new terrorism offences
On 5 September, the European Commission published an evaluation report on the implementation by Member Sates of Framework Decision 2008/919/JHA amending the Framework Decision on combating terrorism of 2002, which introduced three new criminal offences within the EU: ‘public provocation to commit a terrorist offence’, ‘recruitment to terrorism’ and ‘training for terrorism’, and their aiding and abetting. The Commission concluded that, “while most Member States adopted the legislation, questions remain as to the full compliance of the implementing measures in some Member States and two Member States (Ireland and Greece) have not adopted any implementing measures yet.” It also stated that not many fundamental rights concerns were raised with regard to the implementation of these criminal offences.
ReportEU: European Council calls for measures to counter “foreign terrorist fighters”
On 30 August, the European Council held a special meeting at which it decided to undertake a series of measures to combat the “phenomenon of foreign fighters,” particularly EU nationals joining the Islamic State organization in Syria and Iraq. The European Council called for “the accelerated implementation of the package of EU measures in support of Member States efforts, … in particular to prevent radicalisation and extremism, share information more effectively – including with relevant third countries, dissuade, detect and disrupt suspicious travel and investigate and prosecute foreign fighters. In this context, the European Council call[ed] on the Council and the European Parliament to finalise work on the EU Passenger Name Record proposal before the end of the year.”
NATO: Wales summit renews commitment to fight terrorism
On 5 September, at the conclusion of a summit in Wales, head of States or government of the NATO member States issued a declaration addressing all the priorities of the North-Atlantic Treaty Organization (NATO). The NATO member States reaffirmed their “commitment to fight terrorism with unwavering resolve in accordance with international law and the principles of the UN Charter.” The Declaration specified that “NATO has a role to play, including through our military cooperation with partners to build their capacity to face such threats, and through enhanced information sharing. Without prejudice to national legislation or responsibilities, the Alliance strives at all times to remain aware of the evolving threat from terrorism; to ensure that it has adequate capabilities to prevent, protect against, and respond to terrorist threats; and to engage with partners and other international organisations, as appropriate, promoting common understanding and practical cooperation in support of the UN Global Counter-Terrorism Strategy, including in areas such as Explosive Risk Management.”
DeclarationGlobal Counter-Terrorism: Ministers adopt best practices in countering terrorism
On 23 September, the Fifth Ministerial Meeting of the Global Counter-Terrorism Forum took place in New York. Sponsored by the US and Turkey, the Forum gathers ministers from Algeria, Australia, Canada, China, Colombia, Denmark, Egypt, the European Union, France, Germany, India, Indonesia, Italy, Japan, Jordan, Morocco, The Netherlands, New Zealand, Nigeria, Pakistan, Qatar, Russia, Saudi Arabia, South Africa, Spain, Switzerland, Turkey, the United Arab Emirates, the United Kingdom, and the United States. In this meeting, the ministers adopted the Hague – Marrakech Memorandum on Good Practices for a More Effective Response to the “Foreign Terrorist Fighters” (FTF) Phenomenon and established a working group on its implementation. They further endorsed the Abu Dhabi Memorandum on Good Practices for Education and Countering Violent Extremism; the Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses and the Recommendations for Using and Protecting Intelligence Information in Rule of Law-Based, Criminal Justice Sector-Led Investigations and Prosecutions.
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