Legal Aspects of Combating Terrorism: Volume 47 NATO Science for Peace and Security Series: Human and Societal Dynamics (Nato Science for Peace and Security ... Sub Series-Human and Societal Dynamics)

165 Pages·2008·0.976 MB·English

by  Centre of Excellence Defence Against Terrorism, Ankara, Turkey

LEGAL ASPECTS OF COMBATING TERRORISM
NATO Science for Peace and Security Series
This Series presents the results of scientific meetings supported under the NATO Programme:
Science for Peace and Security (SPS).
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Against Terrorism; (2) Countering other Threats to Security and (3) NATO, Partner and
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Sub-Series E: Human and Societal Dynamics – Vol. 47 ISSN 1874-6276
Legal Aspects of Combating
Terrorism
Edited by
Centre of Excellence Defence Against Terrorism,
Ankara, Turkey
Amsterdam • Berlin • Oxford • Tokyo • Washington, DC
Published in cooperation with NATO Public Diplomacy Division
Proceedings on NATO Advanced Training Course on the Legal Aspects of Combating Terrorism
Sarajevo, Bosnia Herzegovina
4–8 February 2008
© 2008 IOS Press.
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Legal Aspects of Combating Terrorism vii
Centre of Excellence Defence Against Terrorism, Ankara, Turkey (Ed.)
IOS Press, 2008
© 2008 IOS Press. All rights reserved.
Preface
The Advanced Training Course (ATC) ‘Legal Aspects of Combating Terrorism’, the
papers of which are published in this volume, took place in Sarajevo 04–08 February
2008. The event was jointly hosted by the government of Bosnia Herzegovina and the
Centre of Excellence – Defence Against Terrorism (COE–DAT), which was opened in
Ankara in 2005 with the purpose of supporting NATO on defence issues related to ter-
rorism. Turkey is the framework nation, and at present six other nations also contribute
with staff and funds, namely the United States, the United Kingdom, Bulgaria, Roma-
nia, the Netherlands and Germany. Each year, COE–DAT organizes numerous work-
shops and courses, bringing academic rigour and institutional expertise in terrorism to
interested parties in NATO, Partnership for Peace (PfP), and Mediterranean Dialogue
countries, as well as Non-Triple nations and others.
The course had a practical emphasis. It united experts from various disciplines to
give participants an understanding of how the various dimensions of the laws and their
application fit together. In addition to the lectures which are found in this volume, the
course was divided into three modules: (1) The legal response to terrorism in general
terms; (2) Combating terrorism using lawful means; (3) harmonizing the Law of
Armed Conflict, national laws and NATO in the fight against terrorism.
All participants were invited to participate in Working Groups. In each Group they
discussed ‘Legal Aspects of Terrorism’, after which experts and participants presented
their observations and recommendations in the plenary sessions.
One Working Group, for example, was asked to consider how drastic were the
changes occasioned by the 9/11 attacks to international law. In fact, much of the dis-
cussion at the Sarajevo course, as well as many of the lectures, focused on this issue of
the different responses to 9/11. Above all, the question was asked whether, in the face
of the new threat, terrorism should still be countered through the ordinary means of
criminal law, or whether their should be a significant shift in enforcement methods,
including a less multilateral approach to decision-making and an increased use of mili-
tary force.
The Working Group in question agreed that ‘the provisions of the UN legal system
previous to the 9/11 attacks was not able to deal effectively with the new threat’. The
Group felt, however, that a framework had emerged from Security Council Resolutions
1267 and 1373, and the Counter-Terrorism Committee (CTC). Although they acknowl-
edged that all states have the right to self-defence, many members of the Working
Group identified a risk that some countries attacked by terrorists disregard Chapter One
of the UN Charter, Art. 2 (4), which urges states to ‘refrain in their international rela-
tions from the threat or use of force against the territorial integrity or political inde-
pendence of any state’.
On a related point, a separate Working Group was asked whether the current inter-
national legal regime is adequate for anti-terrorism. In particular they addressed the
question: Is the Geneva Convention’s definition of ‘combatant’ sufficient to deal with
the threat posed by members of terrorist organizations today? Here the Working Group
viii
was of the view that the current legal regime is now adequate and robust enough. The
Group members noted that the system is a web of interconnecting agreements, with no
overarching structure, indeed they listed thirteen international conventions and seven
interregional conventions that specifically address different aspects of terrorism. The
system would also include Rules of Engagement (ROE) which respected Human Rights
Law and the National Law of the host nation. In a reference which drew on experience
of the conflicts which followed the break-up of Yugoslavia, the Group highlighted the
geographical considerations regarding areas of historical or religious significance. An-
swering the question of the definition of ‘combatants’, the Group agreed that the Ge-
neva Conventions were sufficient. Multinational operations must define the combatants
and their legal status at the outset.
Two of the Working Groups were asked to identify the advantages, if any, of using
domestic criminal law to combat terrorism, as opposed to seeing the struggle in terms
of an armed conflict. The criminal law route was generally preferred as more economi-
cal, transparent, and adaptable to circumstances. It provides better protection of human
rights, and helps to give the public the appropriate perception that justice is being fairly
served. Military involvement should be within the framework of a law enforcement
operation, after a judgement following the arguments of the Public Prosecutor and de-
fence lawyers. The intervention should respect UN Human Rights Conventions, and
where relevant the European Convention on Human Rights.
The approach that sees the struggle against terrorism primarily in terms of an
armed conflict carries great risks. Above all, it threatens to destroy the very democratic
rights and processes which underlie the society it seeks to defend. The armed conflict
model rapidly leads to practices such as extra-judicial assassinations and collective
punishment.
On the other hand, other Working Groups addressing these issues identified disad-
vantages in the criminal law and law enforcement route. There is the well-known prob-
lem that the legal process can compromise a government’s counter-terrorism efforts,
for example by exposing intelligence sources. Another drawback is that criminal justice
is slow and reactive rather than pro-active, it usually comes after the terrorists have
struck. There are gaps in international law related to the financing of terrorism, where
many transactions by-pass the banking system, and where it is difficult to establish the
nexus between terrorist activities and legitimate transactions. A final drawback that was
identified was that multilateral military interventions are often characterized by legal
and organizational problems.
However, the benefits of the criminal law route were felt to outweigh its difficul-
ties. It was also pointed out that, in an acknowledged emergency, a government can
derogate from listed rights, so long as the modification is proportionate and necessary.
The International Covenant on Civil and Political Rights, the European Convention on
Human Rights, and the American Convention, speak openly of possible emergencies,
asserting that in such a situation a state may be bound to take measures that would be
inappropriate in peacetime. Another way complementary with the legal response is the
enhancement of defence, where targets are made harder to attack (target hardening).
The course was opened with speeches by COE–DAT Director Col. Ahmet Tuncer
and the Minister of Defence of the Republic of Bosnia Herzegovina, Selmo Çikotiç. Mr
Çikotiç, outlining ‘Bosnia Herzegovina’s Stand against Terrorism’, began by recom-
mending that international efforts be renewed to find a accepted definition of terrorism.
He went on to note that the measures required for the new threats may take us beyond
ix
the conventional legal norms. His speech also described the steps taken by the Ministry
of Defence and government in Bosnia Herzegovina to combat terrorism.
Mr Ercan Çitlioğlu was the next speaker, with a lecture on ‘Terrorism and Its
Globalization’ (see Chapter Two). This lecture states that the rise of individualism, the
end of the Cold War, and the increasing role of non-state actors have caused a greater
complexity in international relations. Many communities feel themselves to be victims,
in some circumstances retreating into ‘learned despair’, and only communicating
through violence. Regional conflicts have spread, and this has in turn been exploited by
the hegemonic powers as they seek to consolidate their positions. Many more conflicts
are likely to result from the growth in world population, climate change, energy and
water shortages. This paper also analyzes the term ‘global terrorism’, and finds that
what is called ‘global terrorism’ does not differ from earlier terrorism in its main fea-
tures.
Prof. Robert Cryer’s lecture, ‘An Overview of the Law on Terrorism’ (see Chapter
Three), also introduces us to the subject of this volume with a broad survey of issues.
He notes the fact that became rather a theme of the course, that there have been differ-
ent ways in which international law has sought to combat the terrorism highlighted by
the 9/11 attacks. UN negotiations on a comprehensive terrorism treaty are ongoing, but
have so far met with limited success. Professor Cryer asks whether the more appropri-
ate route to take would be to encourage ratifications of the existing treatises rather than
to expend diplomatic energy on what might be impossible. Where terrorism is sub-
sumed under other international crimes, international criminal law applies equally to
terrorist offences falling under that rubric.
‘The United Nations and the Challenge of Combating International Terrorism’ is
also the theme of Chapter Four, by Assist.-Prof. Isaac Kfir. His lecture opens by defin-
ing the term post-modern terrorism and then moves on to look at the role of the Secu-
rity Council, the General Assembly and the Secretary-General in devising a programme
that deals with the threat. Assist-Prof. Kfir’s aim is to emphasise that the United Na-
tions operates in three different areas in the war against terrorism: force, morality and
economic and social assistance. The UN has made a start, but much more needs to be
done.
Assist.-Prof. Isaac Kfir also provides the next lecture (see Chapter Five), this time
on national law. ‘Islamic Radicalism: the UK Case’ explores some of the reasons be-
hind the apparent rise in Islamic radicalism in the United Kingdom over the last few
years. Using Fukuyama’s and Huntington’s theories, it is argued that a spiritual void,
coupled with a desire to belong to something ‘greater’, has led young British Muslims
towards Islamism. The author then outlines some of the measures undertaken by British
authorities, and concludes with recommendations for improving relations between
mainstream British society and the Muslim community.
‘Human Rights and Terrorism’ (see Chapter Six) of Capt. Derya Yaman identifies
the commitment of states to human rights as among the most powerful weapons against
terrorism. Counter-terrorism efforts must be carried out in keeping with international
human rights obligations. Sacrificing our core values in the process, says Capt. Yaman,
would be self-defeating and self-destructive. The lecture concludes, therefore, by argu-
ing that the security needs of a state must be kept in balance with its counter-terrorism
efforts.
In Chapter Seven, the central premise of Dr. Nicolas Ridley’s ‘Combating Terror-
ist Financing: The Dichotomy between Formulating the Legal Bases and Effective Op-
erational Intelligence’ is that anti-terrorist legal measures have actually been com-