Investigation, Prosecution and Adjudication of Foreign Terrorist Fighter Cases for South and South

126 Pages·2017·3.17 MB·English

Investigation, Prosecution
and Adjudication of
Foreign Terrorist Fighter Cases
for South and South-East Asia
Cover image: istockphoto.com/Lorado
UNITED NATIONS OFFICE ON DRUGS AND CRIME
Vienna
Investigation, Prosecution and Adjudication
of Foreign Terrorist Fighter Cases for
South and South-East Asia
UNITED NATIONS
Vienna, 2018
© United Nations, June 2018. All rights reserved.
The designations employed and the presentation of material in this publication do not imply the expression of
any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any
country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.
This publication has not been formally edited.
Publishing production: English, Publishing and Library Section, United Nations Office at Vienna.
Contents
Introduction .......................................................................................................................v
Chapter 1. Overview of foreign terrorist fighter topics ..........................................................................1
1.1 The foreign terrorist fighter phenomenon ......................................................1
1.2 Evolution ....................................................................................2
1.3 Global situation ...............................................................................5
1.4 Regional situation ...........................................................................11
1.5 Typology and motivation .....................................................................19
1.6 Women and children ........................................................................23
1.7 Criminal justice and administrative options ...................................................28
1.8 Prosecution of foreign terrorist fighters ........................................................32
Chapter 2. Global framework .............................................................................................................43
2.1 Introduction .................................................................................43
2.2 International legal framework on terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
2.3 Criminal justice response to foreign terrorist fighters ...........................................45
2.4 Regional cooperation frameworks ............................................................51
2.5 International legal framework and civil society .................................................55
Chapter 3. Investigations and foreign terrorist fighters .......................................................................57
3.1 Introduction .................................................................................57
3.2 Securing digital evidence .....................................................................57
3.3 Digital evidence at a crime scene ..............................................................64
3.4 Online evidence and intelligence ..............................................................70
Chapter 4. Preventing and countering violent extremism ....................................................................81
4.1 Introduction .................................................................................81
4.2 Strategies to counter violent extremism leading to terrorism .....................................82
4.3 Detained and convicted foreign terrorist fighters ...............................................87
4.4 Civil society .................................................................................88
4.5 Involvement of society and communities ......................................................92
Chapter 5. Adult learning and training methodology ..........................................................................97
5.1 Chapter objectives ...........................................................................97
5.2 Introduction to the training methodology chapter ..............................................97
5.3 Comparing adult learning and student learning .................................................98
5.4 Identification of needs ..................................................................... 100
5.5 Learning objectives ........................................................................ 101
5.6 Learning cycle ............................................................................. 103
5.7 Course plan ............................................................................... 106
5.8 Logistical arrangements .................................................................... 107
5.9 Course opening ........................................................................... 109
5.10 Exercises .................................................................................. 109
5.11 Visual aids ................................................................................ 110
5.12 The facilitator ............................................................................. 113
5.13 Public speaking techniques ................................................................. 114
5.14 Conclusion: key numbers ................................................................... 116
iii

Introduction
Foreign terrorist fighters (FTFs) have, over the past few years, constituted one of the major threats to
international peace and security.
On 24 September 2014, the United Nations Security Council adopted resolution 2178 as a response
to the increasing threat posed by FTFs, requiring Member States to implement criminal justice
measures to effectively prevent, deter and criminalize the travel of FTFs and their related activities.
While the resolution primarily targets individuals travelling to Iraq and the Syrian Arab Republic to
join entities such as ISIL (Da’esh),1 the Al-Nusrah Front and certain other cells or derivatives of
Al-Qaida, the definition of FTFs is cast widely to include all “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”.
Since the adoption of this resolution, there have been significant changes and developments in the
landscape of the FTF phenomenon. As ISIL (Da’esh) loses ground in the Syrian Arab Republic and
Iraq, Member States will be concerned as FTFs search for new battlegrounds. This is particularly the
case in South and South-East Asia. For South and South-East Asian countries, the phenomenon of
FTFs relates not only to a country’s nationals travelling to and from Iraq and the Syrian Arab Republic,
but also to those individuals who travel to perpetrate terrorist acts in neighbouring South and South-
East Asian countries. This unique situation faced by South and South-East Asian countries has given
rise to calls for greater regional and cross-regional cooperation to prevent and counter the threat of
FTFs.
As such, it is imperative that national authorities review their current national criminal justice
frameworks and strategies to prevent and counter the threat of FTFs, including returning and relocating
FTFs and their families, in both regions. Responding to the identified needs of Member States in
countering the threat of FTFs, the UNODC Terrorism Prevention Branch has published this training
manual on the investigation, prosecution and adjudication of FTFs in South and South-East Asia. The
training manual is intended to be used as an aide for practical training sessions for law enforcement
officials and judicial officers. The training manual focuses on, among other aspects, the international
and regional legal frameworks relevant to FTFs, with a focus on digital evidence, including online
investigatory tools and techniques. The manual also includes an adult learning methodology.
1 Hereinafter for ease of reference, the text uses “ISIL” to refer to ISIL (Da’esh), ISIS, IS or the Islamic State, and the “caliphate”
to refer to its area of control. The authors take no position as to the legal or formal status of any group, territory or jurisdiction.
v

Chapter 1
Overview of foreign terrorist
fighter topics
1.1 The foreign terrorist fighter phenomenon
Scope of the term “foreign terrorist fighter”
The concept of “foreign fighters” is not new. Over the past 250 years alone, nearly 100 civil wars have
included the participation of fighters from abroad.2 The Spanish Civil War (1936-1939) is a prime
example, in which around 50,000 volunteers from more than 50 countries participated, representing
both sides of the conflict.3
The term “foreign fighter” was first officially used in reference to fighters travelling from outside the
conflict zone to fight for Al-Qaida in Afghanistan, and has become more and more commonly used
since the terrorist-led insurgency started in Iraq in 2003. In the absence of a legal definition, several
academics have presented differing meanings of the term.
One of the most widely accepted is that of the Geneva Academy of International Humanitarian Law
and Human Rights:
“A foreign fighter is an individual who leaves his or her country of origin or habitual residence to
join a non-State armed group in an armed conflict abroad and who is primarily motivated by
ideology, religion, and/or kinship”.4
Terrorists who travel internationally to commit attacks is not a new concept either, and has become
an increasing phenomenon since global travel became easier in the twentieth century. The first notable
appearance of the term “foreign terrorist fighters” was in United Nations Security Council resolution
2170, adopted in August 2014 in response to the then-escalating crisis in the Syrian Arab Republic and
Iraq. Condemning the terrorist acts causing the deaths of civilians, the Security Council called upon
Member States to “suppress the flow of foreign terrorist fighters” to violent extremist groups in the two
countries.5
2 David Malet, Foreign Fighters: Transnational Identity in Civil Conflicts, (Oxford University Press, 2015). David Malet, “What
does the evidence tell us about the impact of foreign fighters on home-grown radicalization”, debate on 6 July 2015. At https://
www.radicalisationresearch.org/debate/malet-foreign-fighters-home-grown-radicalization/.
3 Sebastiaan Faber, “Spain’s Foreign Fighters”, Foreign Affairs (September/October 2016). At https://www.foreignaffairs.
com/reviews/review-essay/spain-s-foreign-fighters.
4 Geneva Academy of International Humanitarian Law and Human Rights, “Foreign Fighters under International Law”,
Academy Briefing No. 7 (October 2014). At https://www.geneva-academy.ch/joomlatools-files/docman-files/Publications/
Academy%20Briefings/Foreign%20Fighters_2015_WEB.pdf.
5 United Nations, “Security Council Adopts resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human
Rights by Extremist Groups in Iraq, Syria” (15 August 2014). At https://www.un.org/press/en/2014/sc11520.doc.htm.
1
INvESTIGATION, PROSECUTION AND ADJUDICATION OF FTF CASES FOR SOUTH AND SOUTH-EAST ASIA
A month later, on 24 September 2014, United Nations Security Council resolution 2178 was
adopted to specifically tackle “the acute and growing threat posed by foreign terrorist fighters”. The
resolution emphasized the urgency of tackling the issue of all FTFs, in particular those of ISIL (Da’esh),
the Al-Nusrah Front and “derivatives” of Al-Qaida.6
The resolution provided a helpful definition of an FTF:
Foreign terrorist fighters are “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”.7
In December 2017, United Nations Security Council resolution 2396 reaffirmed the definition of
FTFs, and called upon Member States to tackle the threat posed by FTFs returning or relocating from
conflict zones.8
Scope of the definition
Significantly, the United Nations definition only applies to foreign fighters who travel for the purpose
of “terrorist” activity. While they might be guilty of a crime in their home State by virtue of privately
engaging in an armed conflict in another country, not all foreign fighters are terrorists and should not
be treated as such. The United Nations definition applies regardless of whether the FTF is engaged in
armed conflict. The International Committee of the Red Cross has warned of the “potentially adverse
effects” of conflating armed conflict with terrorism, and erroneously designating all non-State armed
groups as terrorists.9 FTFs also differ from mercenaries, who fight abroad on behalf of governments or
privately financed entities10 and are “motivated to take part in the hostilities essentially by the desire for
private gain”.11 However, where financial and political or ideological interests significantly overlap, they
may fall within the scope of the definition of FTFs.
1.2 Evolution
“Before the Arab Spring erupted in 2011, some 30,000 Muslim foreign fighters had
already taken part in 18 different conflicts, ranging from Bosnia to Kashmir and the
Philippines”.
Source: Alex P. Schmid, “Foreign (Terrorist) Fighter Estimates: Conceptual and Data Issues”, ICCT Policy Brief
(October 2015).
6 United Nations Security Council resolution 2178 (2014).
7 Ibid.
8 United Nations, “Security Council Urges Strengthening of Measures to Counter Threats Posed by Returning Foreign
Terrorist Fighters, Adopting resolution 2396 (2017)” (21 December 2017). At https://www.un.org/press/en/2017/sc13138.
doc.htm.
9 International Committee of the Red Cross, “The applicability of IHL to terrorism and counterterrorism” (1 October 2015).
At https://www.icrc.org/en/document/applicability-ihl-terrorism-and-counterterrorism.
10 Charles Lister, “Returning Foreign Fighters: Criminalization or Reintegration?”, Policy Briefing August 2015 (Brookings
Doha Center, 2015). At https://www.brookings.edu/wp-content/uploads/2016/06/En-Fighters-Web.pdf.
11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts, 8 June 1977, Art. 47. The use of mercenaries is covered by other international, regional, and domestic laws.
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