Published on 13 December 2012 in Research / Books and other publications

Share this:

The role of prosecutors in ensuring human rights compliant responses to terrorism

Commonwealth Law Bulletin ISS Contribution

To cite this article: Anton du Plessis (2012): The role of prosecutors in ensuring human rights compliant responses to terrorism, Commonwealth Law Bulletin, DOI:10.1080/03050718.2012.751197

To link to this article: http://dx.doi.org/10.1080/03050718.2012.751197

Abstract

Since 9/11 the threat from terrorism has been regarded as 'exceptional', a threat that requires military and sometimes even extra-judicial responses. But experience has shown that these responses can have unintended and counterproductive results. Many experts now believe that criminal justice and rule of law-based responses to terrorism are often more legitimate, effective and sustainable. The paper argues that prosecutors have a vital role to play in promoting appropriate criminal justice responses to terrorism. Yet with no international court with jurisdiction over terrorist crimes, prosecutors carry the primary responsibility to work with their local law enforcement agencies to bring terrorist suspects to justice before national courts, while ensuring that no misuses or abuses of authority have occurred. To deliver on this man- date, prosecutors must remain vigilant and ensure that the counter-terrorism actions of police, corrections and other law enforcement authorities are lawful and respectful of human rights. This will often require immense courage under fire.

Our responses to terrorism as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism - not privileges to be sacrificed at a time of tension. (UN Secretary General, Kofi Annan, 2003)

I was honoured to be part of the panel presenting to such an impressive group of African prosecutors and criminal justice practitioners. As a former prosecutor from South Africa, I share their passion and commitment to justice and the rule of law. However, my career has taken a slightly different, albeit related, path over the past 10 years. I still work on ending impunity for serious crimes, but now from a regional and international policy and best practice perspective where I have worked as a counter-terrorism and criminal justice legal expert for various parts of the United Nations. More recently I returned to Africa to work with the Institute for Security Studies, where I head a division that aims to promote African responses to international crimes, including terrorism. I have worked in more than 20 African countries and have had the privilege to work with many people attending the conference.

The topic of the panel covered a broad range of issues relating to the work of prosecutors. While my focus on counter-terrorism and human rights might seem slightly remote to some, it has actually impacted extensively on the work of prosecutors in several African countries, including many in east Africa.

Few will dispute that terrorism has had a devastating impact on African development, and human security and has taken the lives of too many innocent men, women and children. Unfortunately, our efforts to respond to the threat have also resulted in a number of negative consequences. Sadly, the rule of law, human rights and justice have suffered as many countries scrambled to comply with the new global security paradigm imposed in the wake of the terrible attacks on the USA on 11 September 2001.

Undoubtedly, the 9/11 terrorist attacks shocked the world and changed the national as well as international political and legal landscape for responding not only to terrorism, but other security threats too. Few parts of the world were unaffected, and few aspects of our lives were left untouched. The threat from terrorism was perceived to be `exceptional`; a threat that required an `exceptional` global response from everyone, and all sectors, including of course the criminal justice system.

Although there have been some positive outcomes, such as increased levels of multinational and multilateral consensus and co-operation to counter these threats, the post 9/11 decade has largely become synonymous with significant rule of law abuses attributed to real and claimed security imperatives, together with recurring themes of illegality, illegitimacy, lack of accountability and exceptionalism. Such negative trends and practices have brought the very notion of human security and the rule of law into disrepute, such that there is an urgent need to re-establish a coherent and effective relationship between these concepts. In this regard, a number of countries engaged in practices that undermined human rights and rule of law. These include:

  • prolonged detention without charge;
  • denial of the right to challenge the lawfulness of detention;
  • denial of access to legal representation;
  • monitoring of conversations with lawyers;
  • incommunicado detention; and even
  • ill treatment, even torture, of detainees as well as inhuman and degrading conditions of detention.

While we have witnessed some marked improvements since 2008 (at the international, regional and national levels), recent developments in Africa (and internationally) demonstrate that this progress is precarious, and that we need to remain vigilant to ensure human rights are not sacrificed at the altar of counter-terrorism. Prosecutors have a vital role to play in this regard. Unfortunately this job is made no easier by the complex and politically charged nature of terrorist crimes, the resultant executive pressure on the criminal justice system to make sure justice is delivered to terrorists, the expectations of victims, and of course the intricate and often transnational nature of international terrorism cases. I have witnessed this pressure first hand while working with prosecutors (and judges) from various African countries involved in high-profile terrorism prosecutions.

While their integrity and independence impressed me, the political pressure they were subjected to amazed me.

This pressure will not come as a surprise: in the real world, countries that face growing terrorist threats are more likely to flex their national security and executive muscles, often at the expense of human rights and the rule of law. Prosecutors find themselves having to work in a difficult space - one where political, security and rule of law interests intersect in complex and unpredictable ways. But it`s a space they must occupy, because experience has shown the appropriate criminal justice responses to terrorist crimes form a key component of any longer-term, sustainable and legitimate response to the threat.

While the prosecution of terrorist suspects will not always provide the perfect solution, there are a number of persuasive reasons supporting criminal justice responses to terrorism. These can be summarised as follows.

  • First, a criminal justice approach assists in the prevention of terrorist acts. By ensuring clear national laws that criminalise conduct preparatory to terrorist attacks, such as conspiracy (in the civil law countries, association de malfaiteurs), incitement, recruitment, and financing, prosecutions can be brought against suspected persons. This allows officials to intervene at early stages in the planning of attacks. Early intervention often produces vital intelligence and evidence capable of disrupting and revealing related activities, as well as exposing other members of the criminal enterprise.
  • Second, by affording suspects due process in the criminal proceedings from investigation to conviction, the state complies with its international, and national legal and constitutional duties. Importantly, the state also retains the long-term strategic advantage of moral supremacy. If states abandon human rights and due process safeguards this may lead to them using methods that are indistinguishable from their enemy, thereby depriving the state of legitimacy and elevating the claims of terrorists groups to some further degree of moral equivalency.
  • Third, a predominantly military-based counter-terrorism strategy can have unintended consequence enabling terrorists to cast themselves as `warriors` justifiably engaged in some form of noble enterprise. Prosecuting terrorists as criminals strips them of this undeserved badge of honour. There is even a case for prosecuting such persons, where possible, with ordinary criminal offences which relate to their conduct such as murder, arson, conspiracy to murder, etc. rather than attaching the `terrorist offence` label, which may be seen by some suspects as a form of political statement or victory.
  • Fourth, the conduct of a transparent and public (where possible) trial affords victims a voice in the process, whereas secretive, non-legal channels of dealing with terrorist cases denies this to them. It also denies the possibility that offenders, faced with victims or with society as represented by the court, might denounce their criminal past and contribute to society, including to national counter-terrorism efforts.

Prosecutors are at the heart of this criminal justice response to terrorism. With no international court with jurisdiction over terrorist crimes, they carry the primary responsibility to work closely with local law enforcement agencies to bring terrorist suspects to justice before national courts, while ensuring that no misuses or abuses of authority have occurred. However, many counter-terrorism experts will say that from a law enforcement and criminal justice perspective, modern terrorist crimes can no longer be dealt with under the framework of an international order defined by the nation-state. Terrorist crimes are similar to complex transnational crimes in that they require a multilateral effort that, among others, depends on enhanced international co-operation in criminal matters. This has been reiterated in numerous international and regional resolutions, instru- ments and declarations, most notably the well-known UNSC Resolution 1373 (2001).

Experience has shown that the imperative to enhance international co-operation has resulted in a number of well-publicised extra-judicial and unlawful counter-terrorism co-operation practices that have fallen short of key international human rights, rule of law and due process protections. For example, the practice of extraordinary rendition, which is transporting suspected foreign terrorists or other individuals suspected of crimes, to third countries for interrogation and imprisonment without following due process. In this regard, the US-led programme of extraordinary rendition was supported by a number of countries, and was often accompanied by other serious human rights violations, including indefinite and secret detention and torture. This practice ultimately hindered co-opera- tion between several states, and contributed to the negative reputation of global counter-terrorism efforts.

But getting it right (i.e. effective and lawful international co-operation in counter-terrorism cases) is not as easy as it sounds. The practice of mutual legal assistance (MLA) and extradition can be daunting for even the most experienced prosecutors. Below are a few key issues to keep in mind:

Intelligence co-operation is key, but also prone to due process abuses

The nature of terrorism threats necessitates the gathering, sharing and analysis of information and intelligence, often in several jurisdictions at the same time. Intelligence plays a crucial role in identifying and analysing terrorist threats and crimes. It also provides important leads for criminal investigations and in the development of effective national security and criminal justice strategies to counter terrorism. With the transnationalisation of terrorism, the work of intelligence agencies has moved centre-stage in the broad spectrum of counter-terrorism measures available to governments. This centrality is reflected in the expanded powers of intelligence agencies, the increased focus on intelligence sharing and international co-operation.

Although improved use of intelligence, and enhanced co-operation between intelligence agencies, is a seemingly positive development, intelligence gathering and sharing carries a number of inherent risks, often associated with the secret and covert nature of intelligence work. Secrecy, while of course necessary, can also lead to a lack of transparency, accountability and oversight. This lack of transparency has the potential to undermine the rule of law, due process and human rights, and can even lead to the collapse of a prosecution due to inappropriately obtained intelligence that cannot be used as evidence at trial. A second potential for abuse arises when intelligence agencies are given too much executive power, with too little parliamentary or judicial scrutiny. These challenges are not merely academic. Intelligence services in various parts of the world have overstepped the mark drawn by accepted international human rights, rule of law and due process standards.

So in our efforts to prosecute terrorists we must take care not to inappropriately blur the jurisdictional `firewall` that has traditionally divided law enforcement agencies (including prosecutors) from intelligence services. In our move towards more proactive counter-terrorism prosecutions we must foster co-operation between the prosecution service and the intelligence sector in a way that retains the integrity of the firewall. Moreover, as we become engaged in counter- terrorism investigations at an earlier stage, we should strategically guide our joint task forces and law enforcement colleagues to collect admissible intelligence and avoid steps that might hamper the criminal process.

The practice of preventive counter-terrorism is important, but it can also lead to abuses

Many governments have since 9/11 prioritised the practice of early intervention aimed at preventing terrorist attacks. This is understandable. Unfortunately, a number of preventative actions have resulted in the serious flouting of human rights and due process protections. In the area of co-operation between states, practices of extra-judicial removals, disguised extraditions and the abuse of the principle of non-refoulement are particularly concerning. The principle of non-refoulement (which is firmly established under a number of regional and international human rights instruments and customary international law) prohibits governments from returning, deporting, extraditing, expelling or otherwise sending someone to a country where that person might face a real risk of serious human rights violations. Several courts in Africa (and Europe) have taken a tough line on these practices (as my colleagues from South Africa know all too well). Prosecutors should not in the business of extra-judicial deportation and non-refoulement practices, as we should always be on guard to ensure the legitimacy, and legality, of all counter-terrorism international co-operation practices.

Beyond international co-operation, prosecutors in counter-terrorism cases also need to pay attention to some of the more `run-of-mill` practices that have been subject to abuse in counter-terrorism prosecutions in recent years. These include:

Human rights abuses that occur at the time of arrest and detention

International human rights law recognises that all individuals should be protected from unlawful interference with the right to liberty. From a counter-terrorism per- spective some states have deemed it necessary to indefinitely detain terrorist sus- pects, leading to concern and condemnation from human rights organisations. Basic principles on human rights compliant arrest and detention should include that arrest and detention should not be conducted arbitrarily. International law also prohibits secret detention.

And no matter how 'dangerous' your suspect is, don't forget their basic right to a fair trial

It is fundamental that individuals suspected of terrorist offences have a right to a fair trial and due process in both civil and criminal procedures. This includes the right to be presumed innocent, the right to an independent public, legal hearing within a reasonable time, the right to equality before the courts, the right to a lawyer, and the right to have a conviction reviewed by a higher court. Due process must also include the appointment of an independent and impartial judiciary and equality of arms between prosecution and defence. Some states have used military courts or tribunals, including military judges for trials concerning terrorist acts. This brings additional human rights considerations into play, for instance whether there is a conflict of interest if there is a civilian on trial and a military judge appointed and employed by (and under military discipline) the same military authority as carrying out the prosecution. Military courts should have the same human rights standards as civilian courts as a point of departure. Other important fair trial considerations include: improper use of entrapment by under- cover agents; the admission of unlawfully obtained evidence; and unconstitutional and unlawful freezing and seizing of assets.

Let me conclude. Kofi Annan was 100% right when he said in 2003 that `Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism - not privileges to be sacrificed at a time of tension`. Prosecution services are vital parts of states` counter-terrorism efforts. But they carry an additional important responsibility of upholding the rule of law by ensuring the lawfulness of state action. In this regard prosecutors must remain vigilant and ensure that the counter-terrorism actions of police, corrections and other law enforcement authorities are lawful and respectful of human rights. This will often require immense courage under fire. But then prosecutors know this when they sign up for this noble profession.

Notes on contributor

Anton du Plessis is an international law and criminal justice expert with extensive experience working on rule of law, international crime, counter-terrorism and justice issues. Anton has held senior positions at the United Nations, South Africa`s National Prosecuting Authority, and the Institute for Security Studies (ISS). He has worked as a consultant and expert adviser to various UN entities and other intergovernmental organisations. He is a well-known commentator and analyst in local and international media and has published numerous articles, book chapters and training guides, and is the co-author of a book published by Oxford University Press (UK) in 2009 entitled Counter-Terrorism Law and Practice: A Practitioners' Handbook.

 

Related content
Africa Counter-terrorism International criminal justice