Easier said than done: using the justice system to counter terrorism
West Africa shows the challenges of shifting from military strategies to human rights and justice based responses.
Global policy says states should deal with terrorism in their own courts, through fair criminal justice processes. In practice however, military and security strategies have been the norm worldwide over the past two decades. The challenge of making criminal justice responses a reality is evident in the case of West Africa.
The United Nations (UN) Security Council agreed in 2001 that terrorist acts should be classified as serious criminal offences in domestic law so that perpetrators could be brought to justice. The UN’s 2006 Global Counter-Terrorism Strategy prioritises the rule of law and human rights in responding to terrorism.
The most practical way to implement these UN tenets is using principles embedded in the criminal justice system: equality, accountability and fairness in applying the law. West African countries have taken the right steps to achieve this, even if implementation lags behind policy.
West Africa has been targeted by a complex range of terrorist groups over the past decade, some with links to international terrorism. Driven by multiple socio-economic and political grievances as well as extremist ideologies, the devastation wreaked by these groups has placed enormous pressure on states and regional institutions to respond quickly and effectively.
The devastation wreaked by terror groups in West Africa puts enormous pressure on states to respond quickly
The Economic Community of West African States (ECOWAS) has developed a counter-terrorism strategy and implementation plan that focuses on the rule of law and protection of human rights. Initiatives are also in place to strengthen criminal justice sector cooperation between ECOWAS states in responding to terrorism.
Countries in West Africa most affected by terrorism – Burkina Faso, Côte d’Ivoire, Mali, Niger and Nigeria – have signed and ratified the relevant international conventions on terrorism. They have also instituted various criminal justice approaches, including enacting domestic laws and establishing specialised judicial measures for terror-related offences.
Despite these advances, security approaches still dominate in West Africa, with military operations leading counter-terrorism efforts. This stems from several interrelated factors: the ‘war on terror’ that led global responses post-9/11; external funding and support for individual and multi-country military interventions; and the urgency to stabilise areas overwhelmed by violence.
While sometimes necessary to contain genuine national emergencies, security based counter-terrorism operations create significant risks in the long term, because they exacerbate cycles of grievance and violence that drive extremism. Recent research confirms that aggressive counter-terrorism responses resulting in the death, injury or unlawful arrest of loved ones are key ‘tipping points’ for extremist recruitment in Africa.
The human cost of the use of force is often unavoidable and always high. In West Africa, organisations have documented a range of human rights violations taking place during counter-terrorism operations.
Despite advances, military operations still lead counter-terrorism efforts in West Africa
These include granting extraordinary powers to law enforcement agencies, extrajudicial killings, wrongful arrests, torture and enforced disappearances. Due process for terror suspects is also lacking, including indefinite detention without charge, lengthy pre-trial detention and denying suspects access to lawyers. Impunity for violators is often widespread.
There are many barriers to using justice approaches to counter terrorism in West Africa. The security context is complex, with disastrous implications for human security. The range of actors involved in the conflict and in trying to restore peace makes consensus and coordination difficult. Weak criminal justice systems struggle to investigate and prosecute terrorist acts, and there are systemic problems of limited resources and capacity, corruption, impunity and political interference.
Long-term approaches based on specific local contexts are crucial. In the short term, a concerted effort is needed to ensure that human rights are protected in counter-terrorism responses. The focus should be on investigating and bringing to justice alleged perpetrators of human rights violations – whether from terrorist groups or security forces – and addressing the needs of victims.
In Nigeria, demands for accountability and justice from communities show that perceptions of impunity need to be addressed. The establishment of a judicial panel to investigate the military’s human rights record and mass trials of Boko Haram suspects will help achieve this.
In West Africa, a range of human rights violations during counter-terrorism operations have been documented
Civilian oversight bodies must be strengthened and empowered to hold to account government agencies conducting counter-terrorism operations. The 2016 appointment of a civilian governor for Niger’s Diffa region – where a state of emergency was declared in 2015 following repeated terror attacks – shows the government is committed to civilian oversight in that region.
In the medium term, special criminal justice agencies must be trained and equipped to investigate, prosecute and adjudicate complex terrorism crimes. Given the large number of terror suspects and returnees, additional capacity may be needed to process terror-related cases. Governments can also authorise and equip traditional or restorative justice mechanisms to process certain crimes, within carefully monitored rule of law parameters.
Niger recently processed 230 terrorism-related cases in two months – the result of concerted action by Niger’s judiciary and the UN Office on Drugs and Crime. This shows what is possible. In the quest to rapidly handle cases however, it’s important that justice is seen to be served and that victims are given a chance to participate in the criminal justice process – both of which are essential parts of healing.
Criminal justice system reform programmes in West Africa – which are vital to sustainable peace and development – must be adapted to absorb the added pressures and complexities of terror crimes. This includes equipping ‘ordinary’ police, prosecutors and courts to handle terrorism cases within rule of law and human rights frameworks.
Romi Sigsworth, Research Consultant, Transnational Threats and International Crime, ISS Pretoria
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