Ebook: Legal Aspects of Combating Terrorism

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 terrorism. 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, Romania, the Netherlands and Germany. Each year, COE–DAT organizes numerous workshops 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 discussion 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 military 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 acknowledged 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 relations from the threat or use of force against the territorial integrity or political independence of any state’.

On a related point, a separate Working Group was asked whether the current international 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 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. Answering the question of the definition of ‘combatants’, the Group agreed that the Geneva 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 economical, 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 defence 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 disadvantages in the criminal law and law enforcement route. There is the well-known problem 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 difficulties. 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 recommending 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 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 features.

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 different 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 appropriate 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 subsumed 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 defining the term post-modern terrorism and then moves on to look at the role of the Security 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 Nations 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 behind 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 arguing 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 Terrorist Financing: The Dichotomy between Formulating the Legal Bases and Effective Operational Intelligence’ is that anti-terrorist legal measures have actually been compounding the problem of the strategic intelligence time lag involved in acting against terrorist financing in the half decade since 9/11. Dr. Ridley offers some recommendations for preventing legal loopholes and providing a comprehensive approach.

The following paper, ‘Weapons to Non-State Armed Groups – Back to Westphalia?’ by Dr. Robbie Sabel, is not published in this book. It can be ordered online from the United Nations Institute for Disarmament Research (UNIDIR), in their periodical Disarmament Forum: Engaging non-state armed groups (2008). In his paper Dr. Sabel argues that international law can be relevant to some non-state groups, and is clearly so as regards a state's behaviour. This paper examines which, if any, rules of international law apply to non-state armed groups in regard to the supply of weapons and, more pertinently, it asks the question of which rules apply to states supplying weapons to these groups. Dr. Sabel analyses the different types of non-state armed groups, and examines the issue of state responsibility for these group's acts in international law. He contends that the legal situation is that there could be state responsibility where a state transfers weapons knowingly or recklessly by virtue of simply transferring those weapons.

Dr. Phillip Brunst addresses the ‘Legal Aspects of Cyberterrorism’ (see Chapter Eight). He notes that the internet offers a wide range of possibilities for terrorists and terrorist organizations, including attacks that can be digitally launched and which can affect data, property or human lives. Other important aspects of this threat regard the spreading of terrorist-related contents and the conventional use of the internet, e.g. for communication between terrorists. Dr. Brunst concludes that the legal framework that is available to the international community must address new possibilities for terrorists and at the same time respect the liberties of legitimate users.

Col. Osman Aytaç's ‘Laws and Rules for Soldiers in Armed Conflicts, Crises and Counter-Terrorism’ (see Chapter Nine) gives an overview of the Law of Armed Conflict (LOAC), referring to such important instruments of international law as the Hague and Geneva Conventions, the Hague Cultural Property Convention, and the protocols added to the Geneva Conventions. The second part of the paper concentrates on Rules of Engagement (ROE), which are defined as guidelines specifying under what conditions or circumstances force may be used to satisfy political and/or military demands. The lecture explains the principles of how ROE should be drawn up, and notes that tension always exits in a system that subordinates armed forces under civilian control. Managing this tension is a major role of ROE.

Inspector Ömer Yılmaz lectures on the controversial topic of ‘The Use of Force in Law Enforcement Practices in the Light of ECHR Case-Law’ (see Chapter Ten). He argues that, although national laws have developed the necessary controls for the proper use of force, the growing importance of human rights has given rise to some additional international control systems. In particular the European Convention for the Protection of Human Rights and Fundamental Freedoms and its organs provide important protections. Inspector Yılmaz shows that the case law of the European Court of Human Rights on the proper use of force is a valuable source for law enforcers in fulfilling their daily duties, as well as for the counter-terrorism strategies of democratic countries.

In ‘A Study of UK Anti-Terror Law’ (see Chapter Eleven), Maj. Julian Charvat discusses the development of the UK's terrorism law, from the emergency powers of the Northern Ireland Troubles to the recent developments in the face of contemporary terrorist threats. Maj. Charvat also looks in detail at the London attacks of July 2005 and other events, and at how the laws have been applied.

The expert on EU law, Davide Casale, notes in ‘Institutional and Legal Aspects of EU Counter-Terrorism’ (see Chapter Twelve) that the EU has since 9/11 been trying to react with a comprehensive strategy grounded on four core objectives: prevent, protect, pursue and respond. The Union has also reshaped its institutional and legal counter-terrorist framework, with the role of some EU bodies being strengthened, and new institutional actors being established. The most important EU institutions in the fight against terrorism have proved to be the European Commission, Europol and Eurojust. Despite some good results achieved, lack of co-ordination and difficulties in information sharing are weaknesses that still hamper the realization of effective intelligence and judicial co-operation. A new common European definition of terrorist offences, the introduction of the European Arrest Warrant and the use of biometrics have enhanced the efficacy of the EU action in preventing and suppressing terrorism. On the other hand, they have raised concerns with fundamental rights and civil liberties.

“Military Response to Terrorism and International Law on the Use of Force” is the theme of Dominika Svarc's paper (see Chapter Thirteen). Ms Svarc points out that in the post-Cold War security environment there have been factual developments and ambiguities that pose important challenges to the basic concepts, principles and rules of international law, especially concerning the use of force. The first part of this paper considers the option of multilateral employment of military force to prevent or to respond to acts of terrorism, and looks particularly at the Security Council's gradual enlargement of the notion of threat to international peace and security with respect to (international) terrorism. The second, and central, part of the paper then to examines the complex issue of a unilateral military response to terrorism, focusing on some its most murky features, such as: (a) the appropriate interpretation of the concept of ‘armed attack’ in the context of terrorist activities; (b) the requirement of attributability to States of terrorist attacks; and (c) the doctrines of anticipatory and preventive self-defence.

Prof. Robert Cryer's second lecture looks into ‘The Future of Legal Aspects of Combating Terrorism’ (see Chapter Fourteen). While the professor does not speculate directly about exactly what will happen to the law in the future, he identifies trends that are likely to have an impact on the law. The first part of the lecture argues that the rhetoric adopted by many after the 11 September attacks was of a ‘war on terrorism’ as a legal paradigm. However, the concept of a separate, non-territorial armed conflict on terrorism has begun to fall from favour internationally. There is a move towards improving the existing law on the basis of the conviction that the relevant law is criminal law. This is the approach that has been taken by various organs of the United Nations. This second part of this paper outlines the development of the law on terrorism: the UN Global Counter-Terrorism Strategy, and developments regarding human rights and terrorism. While not compromising with the terrorists, there is an increased recognition of the social conditions which have facilitated the spread of terrorism.

Col. Mete Tahmisoğlu, ATC Director, COE–DAT, Ankara

International efforts should be renewed to find a definition of terrorism and take effective measures against it. The measures required for the new threats may take us beyond the conventional legal norms. This paper also describes the steps taken by the Ministry of Defence and government in Bosnia Herzegovina in combating terrorism.

The rise of individualism, the end of the Cold War, and the increasing role of non-state actors have caused international relations to transform into a much more complex system. This new system has created many communities which feel themselves to be victims. Such populations may abandon rational debate and retreat into ‘learned despair’, 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. In this context, terrorist groups are likely to base their ideologies on the two most enduring elements of popular identity: religion and ethnicity. This paper also analyzes the term ‘global terrorism’, and finds that what is called ‘global terrorism’ is no different from earlier terrorism.

The purpose of this piece is limited to an overview of the various different ways in which international law seeks to combat terrorism. The UN Security Council, the General Assembly, and the Secretary-General have engaged extensively with the issue of terrorism. Although negotiations on a comprehensive terrorism treaty are ongoing, it is admittedly with limited success. One might ask whether the more appropriate 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 subsumed under other international crimes, the considerations that apply to international crimes apply equally to any terrorist offences that fall under that rubric. In opposition to this, some scholars, like Antonio Cassese, believe that terrorism has matured into a fully-fledged international crime in its own right. However, so far, States and international organisations dealing with terrorism have used the mechanisms of transnational, rather than international, criminality.

The article discusses the United Nation's approach to international terrorism in the post-9/11 world. It opens by defining the term post-modern terrorism and then moves on to look at the role of the Security Council, the General Assembly and the Secretary-General in devising a programme that deals with the threat posed by Islamic terrorism. The aim of the article is to emphasise that the United Nations operates in three different areas in the war against terrorism: force, morality and economic and social assistance. The paper concludes by arguing that the UN has made a start but much more needs to be done.

The paper explores some of the reasons behind the apparent rise in Islamic radicalism in the United Kingdom over the last few years. By using Fukuyama's and Huntington's theories, the author argues that a spiritual void coupled with a desire to belong to something ‘greater’, has led young British Muslims towards Islamism. In the second part, the author explores some of the measures undertaken by British authorities to combat Islamic militancy. The paper concludes with recommendations as to what could improve relations between mainstream British society and the Muslim community in the hope of reducing Islamic militancy.

Commitment of States to human rights is among the most powerful weapons against terrorism. Although definitions of terrorism are rife with conceptual difficulties, human rights norms help to establish a clear moral threshold that should not be crossed. Terrorist acts that violate the fundamental right of human beings—the right to life—are unjustifiable and inexcusable. Counter-terrorism efforts must be carried out in keeping with international human rights obligations. Sacrificing our core values in the process of combating terrorism will be self-defeating and self-destructive. Security needs of the State must be kept in balance with counter-terrorism efforts. Human rights are a guarantee and a precondition for individual freedom. But they will only be respected in a society where the State upholds the rule of law.

This paper is supportive of a presentation given regarding the legal basis of measures against the financing of terrorism. The central premise of this short paper is that anti-terrorist legal measures were actually compounding the problem of a strategic intelligence time lag involved in successfully identifying and acting against the various kinds of modus operandi used in terrorist financing in the half decade since 9/11.

The Internet offers a wide range of possibilities for terrorists and terrorist organizations. This includes attacks that can be digitally launched and which can affect data, property or human lives. Other important aspects regard the spreading of terrorist-related contents and the conventional use of the Internet, e.g. for communication with each other. The legal framework that is available to the international community must address new possibilities for terrorists and at the same time respect the liberties of legitimate users.

The first part of this paper gives an overview of the Law of Armed Conflict. There are various international treaties governing armed conflicts: the main Hague Conventions (1907) and Geneva Conventions (1949), the Hague Cultural Property Convention (1949 and 1954), the protocols added to the Geneva Conventions, and the convention on certain conventional weapons (1977 and 1980). LOAC is described according to its basic principles and definitions. The second part of the paper concentrates on Rules of Engagement, one of the best tools available to policy-makers to help manage armed forces during a crisis. ROE are guidelines specifying under what conditions or circumstances force may be used to satisfy political and/or military demands. As these will vary greatly from situation to situation, this paper does not describe ROE, but discusses the principles of how ROE should be drawn up. Tension inescapably exits in a system that subordinates armed forces under civilian control while retaining military command. Managing this tension by delineating the boundaries of military action in support of political objectives is another major role of ROE. There are vital links between the strategic and tactical levels of conflict. The strongest of these links are often ROE. The ROE for counter-terrorist operations are different to war and crisis ROE in terms of applicable law and the political desire.

Among the diverse practical aspects of the law, the use of force is the one which is criticized most in democratic societies. Although national laws have developed the necessary control systems for the proper use of force, the growing importance of human rights has given rise to some additional international controls. The European Convention for the Protection of Human Rights and Fundamental Freedoms and its organs provide an important protection system in this regard. Especially, the case law of the European Court of Human Rights on the proper use of force is a valuable source for law enforcers in fulfilling their daily duties, as well as for the counter-terrorism strategies of the democratic countries.

This paper discusses the development of the UK's terrorism law from the emergency powers of the Northern Ireland Troubles to the law's recent developments in the face of contemporary terrorist threats. The paper looks in detail at the London attacks of July 2005 and other events, and at how the laws have been applied in countering the terrorists' threat and their activities in the UK.

The 9/11 terrorist attacks in New York and Washington lifted counter-terrorism to the top of the European security agenda. The bombings in Madrid of March 2004 and in London of July 2005 proved that Europe is also a target of the new forms of international terrorism. The EU has since been trying to react to the terrorist threat with a comprehensive strategy grounded on four core objectives: prevent, protect, pursue and respond. The Union has also reshaped its institutional and legal counter-terrorist framework. The role of some EU bodies has been strengthened, while new institutional actors have been set up. The most important EU institutions in the fight against terrorism have proved to be the European Commission, Europol and Eurojust. Despite some good results achieved, lack of co-ordination and difficulties in information sharing are weaknesses that still hamper the realization of effective intelligence and judicial co-operation. A new common European definition of terrorist offences, the introduction of the European Arrest Warrant and the use of biometrics are pioneering legal instruments in counter-terrorism. Such legal tools have enhanced the efficacy of the EU action in preventing and suppressing terrorism. On the other hand, they have raised concerns with fundamental rights and civil liberties. This paper is aimed at providing an initial evaluation of both institutional and legal aspects of the EU fight against terrorism. Whilst acknowledging the achievement of many positive results, this assessment leads also to the conclusion that the European Union has to step up further its efforts to remedy a number of inadequacies and weaknesses arising in both the institutional and legal frameworks of the EU counter-terrorism response.

In the post-Cold War security environment there have been factual developments and ambiguities that pose important challenges to the basic concepts, principles and rules of international law, especially concerning the use of force. The first part of this paper considers the option of multilateral employment of military force to prevent or to respond to acts of terrorism, and looks particularly at the Security Council's gradual enlargement of the notion of threat to international peace and security with respect to (international) terrorism. The second, and central, part of the paper then proceeds to examine the complex issue of a unilateral military response to terrorism, focusing on some its most murky features, such as: (a) the appropriate interpretation of the concept of ‘armed attack’ in the context of terrorist activities; (b) the requirement of attributability to States of terrorist attacks; and (c) the doctrines of anticipatory and preventive self-defence.

This paper will not speculate directly about exactly what will happen to the law in the future. There are far too many variables at issue for any such prediction. The discussion will limit itself to identifying trends that are likely to have an impact on the law in this area. The first part of this paper will argue that the rhetoric adopted by many after the 11 September attacks was of a “war on terrorism” as a legal paradigm. However, the concept of a separate, non-territorial armed conflict on terrorism has begun to fall from favour. Rather, there is a move towards improving the existing law on the basis that the relevant law is criminal law. This is the approach that has been taken by various organs of the United Nations. This second part of this paper outlines the development of the law on terrorism: the UN Global Counter-Terrorism Strategy, and developments on the issue of human rights and terrorism. While not compromising with the terrorists, there is an increased recognition of the social conditions which have facilitated the spread of terrorism.