Expected Council Action
In December, Council members will hold a debate on international judicial cooperation on counter-terrorism. Justice ministers or attorneys general of Council members have been invited to participate in the meeting, which will be chaired by Spanish Justice Minister Rafael Catalá. The adoption of a resolution is the anticipated outcome.
The promotion of international judicial cooperation with the aim of bringing terrorists to justice has been one of the objectives of the Council’s counter-terrorism efforts. Resolution 1373 of 28 September 2001 decided that member states shall “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice”, and that they shall “afford one another the greatest measure of assistance in connection with criminal investigations”. It specifically called on member states to exchange information and cooperate on administrative and judicial matters to prevent terrorist acts.
In 2010, the Counter-Terrorism Committee (CTC) adopted policy guidance on international cooperation focused on ensuring the implementation of the legal obligations laid out in resolution 1373. In particular, it encouraged bilateral and multilateral judicial cooperation and reminded member states of their obligation to extradite or prosecute under applicable international counter-terrorism instruments to which they are parties. The policy guidance also recommended that member states expedite, simplify and give priority to extradition and mutual legal assistance requests in terrorism-related cases.
Challenges to international judicial cooperation have been amplified by the phenomenon of foreign terrorist fighters, which, by definition, has transnational elements. A February 2015 report of the CTC’s Executive Directorate (CTED) outlined some of the difficulties that those prosecuting these fighters face, including finding admissible evidence to support their cases, proving criminal intent and converting intelligence into evidence. In addition, a 15 December 2015 CTED report stated how the global use of mutual legal assistance procedures in place to enforce international judicial cooperation has been generally low, slow and cumbersome As a response to these challenges, the CTC developed 35 guiding principles on foreign terrorist fighters (known as the Madrid principles), which included a section on criminalisation, prosecution and international cooperation to stem the flow of foreign terrorist fighters as well as the rehabilitation and reintegration of returnees.
The issue of returnees has become increasingly important as military counter-terrorism operations evolve in Iraq and Syria. A 30 September report by the Secretary-General highlights the growing challenge to global security presented by the numbers of foreign terrorist fighters returning to their countries of origin, potentially intending to perpetrate attacks, in combination with those being radicalised within those countries.
Despite the legal obligation of states under international law to prosecute persons who commit serious international crimes where no other state has requested extradition (the principle of “aut dedere aut judicare”), the Madrid principles highlight how the employment of rigid prosecution policies and practices against foreign terrorist fighters can be counterproductive. They advocated that member states should consider alternatives to incarceration, as well as the reintegration and possible rehabilitation of returnees, prisoners and detainees.
This year, the CTC has held several meetings to raise awareness and draw lessons learned on this issue. On 10 March, a CTC special meeting took place on the effective adjudication of terrorism cases, which emphasised the role that formal and informal cooperation among judges can play in ensuring accountability. On 17 November, the CTC held another meeting on international judicial cooperation.
Ensuring the efficiency of international judicial cooperation and enhancing the procedures for mutual legal assistance are related key issues.
Upholding the principle of accountability (prosecute or extradite) while developing strategies for the reintegration and rehabilitation of returnee foreign terrorist fighters is a related issue.
The Council could adopt a resolution:
- calling on member states to devote efforts and resources to engage actively in international judicial cooperation on counter-terrorism and to respond swiftly to mutual legal assistance requests;
- encouraging member states to improve exchanges of admissible evidence to support cases being tried in other countries, particularly virtual evidence;
- encouraging member states to use more effective channels of communication, such as the submission of information through electronic or other means of telecommunication;
- calling on member states to be prepared to tackle the growing reality of returning foreign terrorist fighters and ensuring accountability, while encouraging them to consider alternatives to incarceration, when appropriate; and
- urging member states to update and appropriately resource a network of judicial focal points on counter-terrorism.
Despite some divergences over the politicisation of the issue in the Middle East, counter-terrorism continues to have overall unanimous support among Council members. The Council has repeatedly been made aware of the challenges to international judicial cooperation, but its involvement in addressing them has been limited to including language in resolutions or holding discussions at its subsidiary organs. The debate will be an opportunity to maintain the momentum of these discussions and raise awareness among member states about the importance of accelerating and improving judicial cooperation mechanisms. Spain’s initiative follows several high-level meetings on counter-terrorism that have involved ministers of interior (May 2015) and economy (December 2015) in an effort to engage the different departments within governments that might be involved in implementing Council resolutions.
UN DOCUMENTS ON INTERNATIONAL JUDICIAL COOPERATION ON COUNTER-TERRORISM
|Security Council Resolution|
|28 September 2001 S/RES/1373||This resolution placed barriers on the movement, organisation and fund-raising activities of terrorist groups and imposed legislative, policy and reporting requirements on member states to assist the global struggle against terrorism. It also established a Counter-Terrorism Committee to monitor state compliance with these provisions.|
|30 September 2016 S/2016/830||This was the third report of the Secretary-General on the threat posed by ISIL.|
|15 December 2015 S/2015/975||This was a CTED report on the implementation of resolution 2178.|
|15 December 2015 S/2015/939||These were the conclusions of a special meeting of the Counter-Terrorism Committee in Madrid on stemming the flow of foreign terrorist fighters.|
|18 February 2015 S/2015/123||This letter transmitted a report on the seminar on challenges in prosecutions related to foreign terrorist fighters.|
|14 June 2010 S/AC.40/2010/PG.3||This was policy guidance on international cooperation adopted by the CTC.|