Do States Have to comply with Human Rights when Countering the Phenomenon of Foreign Fighters?

Alex Conte
Alex Conte

In a blog for EJIL: Talk!, I consider an old question in a new context: do States have to comply with human rights when countering foreign fighters? The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters has the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

  1. Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Concerning measures to implement the objectives under SC Res 2178 as a whole, the following further rights may be engaged: rights applicable to the criminalisation of conduct, including as this affects the principles of legality, non-retroactivity of criminal laws and double jeopardy; prosecution, including as this affects the right to a fair trial; the right to freedom of expression; the right to freedom of association; and various rights engaged as a result of financial and UN terrorist listing sanctions, including as these relate to the due process deficiencies within the Security Council’s terrorist sanctions regime.

  1. This is exacerbated by the absence in SC Res 2178 of a comprehensive, concise and human-rights compliant definition of terrorism

Consideration of human rights compliance when combating foreign fighters, especially with regard to action in response to Security Council Resolution 2178, must also take into account the absence in that resolution of a definition of terrorism. The absence of a comprehensive and concise definition of terrorism has drawn much criticism, including from the former Special Rapporteur on human rights and fundamental freedoms while countering terrorism (see para 26). His solution was to propose a human-rights compatible definition of terrorism (Practice 7 in his report), drawn from Security Council Resolution 1566 (2004), para 3. This lack of definition, which creates the risk of States adopting overly broad or abusive definitions of the term in the context of combating foreign fighters, is a further aspect to be taken into account  when considering State responses to the phenomenon of foreign fighters against the backdrop of their international human rights obligations.

  1. Global security and human rights are not to be juxtaposed; they are complementary and mutually reinforcing

In September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy, as recommended by Kofi Annan in his report entitled Uniting against Terrorism. In his report, the former Secretary-General emphasised that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones (para 118).

The principle of complementarity and mutual reinforcement between security and human rights is reflected within the Global Strategy in three ways. First, respect for human rights for all and the rule of law forms one of the four pillars of the Strategy (Pillar IV). Second, it is also identified as “the fundamental basis of the fight against terrorism” (Pillar IV, title), thus applicable to all four pillars of the Strategy. Finally, the Strategy’s recognition of the importance of respect for human rights while countering terrorism is reflected through the express identification that a lack of the rule of law and violations of human rights amount to conditions conducive to the spread of terrorism (Pillar I, preambular paragraph).

  1. The Security Council has itself made repeated reference to the need for human rights compliance when implementing SC Res 2178

A notable feature of Resolution 2178 is its repeated reference to the need for human rights compliance. Its preambular paragraphs recognise, in line with the Global Counter-Terrorism Strategy, that measures to counter the phenomenon of foreign fighters must comply with the UN Charter and with States’ obligations under international law, in particular international human rights law, international refugee law and international humanitarian law (preambular paras 5 and 7). Resolution 2178 underscores that “respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort”; and notes that lack of compliance with obligations under international law (including international human rights law) “is one of the factors contributing to increased radicalization and fosters a sense of impunity” (preambular para 7).

In requiring, or recommending, particular action by UN Member States, the operative provisions of Resolution 2178 follow this pattern. For example, the resolution requires States to “prevent and supress the recruiting, organizing, transportation or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training” (operative para 5). But it expressly requires that States do so “consistent with international human rights law, international refugee law, and international humanitarian law”.

  1. The principle of complementarity and mutual reinforcement is also a natural consequence of States’ legal obligations and of the flexibility of human rights law

An obvious point should be recalled: not only are human rights essential to a sustainable strategy for the countering of terrorism, but States are obliged by law to comply with their international human rights obligations. States have human rights obligations under customary international law (applicable to all States) and international treaties (applicable to States parties to such treaties). Compliance with human rights is not something requiring States to do something extra, or something special. In commenting on human rights in the fight against terrorism, former Judge of the European Court of Human Rights,

Justice Egbert Myjer
Justice Egbert Myjer

, succinctly stated: “Just do what you have promised to do” (Myjer E (2009) Human Rights and the Fight against Terrorism – Case-law of the Strasbourg Court (paper presented at the Round Table Fight against Terrorism: Challenges for the Judiciary, 18-19 September 2009, Fiesole, Italy), p.1).

Furthermore, any argument that respect for human rights prevents States from effectively fighting terrorism not only takes a short-term perspective, it also disregards the nature of international human rights law which, other than in the case of a limited number of rights, incorporates a level of flexibility to accommodate security and public order objectives.

  1. The requirement of human rights compliance is not altered when States implement binding decisions of the Security Council

As discussed, certain aspects of the operative provisions of Security Council Resolution 2178 make express reference to the need for States to comply with their international obligations, including under international human rights law. Other binding decisions do not, prompting the questions: how are such obligations to be interpreted; and what approach is to be taken with respect to future decisions of the Security Council where ambiguity is present?

In cases before the UN Human Rights Committee and the European Court of Human Rights, States have, in simple terms, argued that human rights considerations are not relevant when determining the meaning or implementation of Security Council resolutions under Chapter VII of the Charter. States have pointed to the fact that Chapter VII decisions must be carried out by States, without discretion, by virtue of Articles 25 and 48 of the Charter. They have argued that Article 103 of the Charter requires that human rights obligations must be set aside since that provision holds that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter [here, obligations to comply with Security Council resolutions] and their obligations under any other international agreement [here, international human rights treaties], their obligations under the present Charter shall prevail”.

In Sayadi and Vinck v Belgium, the majority of the Human Rights Committee avoided the issue by concluding that the Committee was competent to consider the compatibility with human rights of national measures to implement a Security Council resolution (para 10.6). Its focus was on implementation, rather than interpretation. Two diverging positions can nevertheless be seen. On the one hand, Committee member Ivan Shearer took the view that the Committee should have rejected the authors’ case as unsubstantiated. He effectively agreed with Belgium that the combination of Articles 25, 48 and 103 of the Charter meant that the ICCPR was subordinate to the Charter, not on a par with it. In contrast, Sir Nigel Rodley considered Article 24(2) of the Charter (which provides that the Security

Prof Sir Nigel Rodley
Prof Sir Nigel Rodley

Council must discharge its duties “in accordance with the Purposes and Principles of the United Nations”), concluding that it should therefore be presumed that the Security Council does not intend that action taken pursuant to its resolutions should violate human rights, and that Security Council decisions should be interpreted in light of that presumption.

The European Court of Human Rights, in Al-Jeddah v UK, arrived at the same result as Sir Nigel Rodley. It concluded that the purposes and principles of the Charter, when combined with the qualified competence of the Security Council under Article 24(2) and the UN and Member State commitments under Articles 55(c) and 56, called for an interpretation of Security Council resolutions in a way that was most in harmony with the provisions of the European Convention on Human Rights (para 102). The same approach was later taken by the European Court in Nada v Switzerland in the context of Security Council listing and sanctions resolutions, where it stated:

“[T]he United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes upon States an obligation of result, leaving them to choose the means by which they give effect to the resolutions.”

  1. A human rights compliant approach when implementing binding decisions of the Security Council remains the case even when a State is left with no choice as to the means of implementation

A further question must be addressed: what if a State considers that there are no human rights compatible options in the implementation of a Security Council decision?

The majority approach of the Human Rights Committee in Sayadi and Vinck v Belgium was to disregard any question of the compatibility of Security Council decisions with human rights, instead focussing solely on the question of the compatibility of implementing acts by Belgium with its obligations under the ICCPR. The majority stated (para 7.2):

“While the Committee could not consider alleged violations of other instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party.”

In November 2013, the European Court turned its mind to the question under consideration in this section. In Al-Dulimi v Switzerland, the Court agreed with Switzerland (and France and the UK, who joined as third party interveners) that sanctions mandated under operative paragraph 23 of Resolution 1483 (2003) left Switzerland with no discretion as to the means of implementation (para 113). The Court held that States nevertheless remain liable under the ECHR for all acts and omissions of their organs arising from the need to observe international legal obligations. It continued to explain that, if the organisation under which such obligations arise (in this case the UN and its Security Council) has means of protecting human rights that are at least equivalent to the ECHR, the Court can in such cases assume that the State has complied with its obligations under the ECHR (para 114). The Court concluded that no equivalent protection existed and that, accordingly, Switzerland bore full responsibility for any violation of rights under the ECHR in its implementation of Resolution 1483 (paras 118-120).

Two conclusions can be drawn from this jurisprudence. First, wherever a State has a choice as to the means of implementing a decision of the Security Council, including on foreign fighters, it must adopt the means of implementation that are most consistent with its international human rights obligations. Second, even if an irreconcilable conflict arises between a Security Council decision and a State’s human rights obligations (leaving the State with no choice as to the means of implementation), the State nevertheless remains liable for all acts and omissions of their organs arising from the need to implement such a decision, unless the Security Council decision is accompanied by means of protecting human rights that are at least equivalent to the State’s international human rights obligations. Article 103 of the Charter therefore does not provide States with shelter from bearing full responsibility for any violation of rights.

 

Dr Alex Conte is a Reader in Human Rights Law at Sussex Law School, University of Sussex. His principal area of research interest concerns global security and human rights, looking at various issues pertaining to global security and the interface this has with human rights and the rule of law, as well as with the intersection between international human rights law and international humanitarian law. Twitter: @alexcontelaw.

Can hate crime be prosecuted effectively?

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

As part of a drive to tackle hate crime, the Ministry of Justice asked the Law Commission to examine the case for extending the racially and religiously aggravated offences in the Crime and Disorder Act 1998, so that they also cover disability, sexual orientation and transgender identity. The Commission was not asked to examine whether the existing racially and religiously aggravated offences are in need of reform. In its final report, the Commission recommended that, before a decision is taken as to whether the offences be extended, a full-scale review of the operation of the existing offences be carried out.

If a review is undertaken, it should address questions about the appropriate substantive elements of hate crime offences (what type of conduct do we want to criminalise and against whom?) and the rationale of hate crime legislation (what makes ‘hate crime’ different from other crime? Why should it be treated differently and sentenced more harshly?). But the review should not be limited to these important concerns. Consideration should also be given to the procedural difficulties which can be encountered during the prosecution stage of the criminal process. In other words, to whether the existing racially and religiously aggravated offences can be prosecuted effectively.

The offences aim, amongst other things, to protect certain vulnerable groups, tackle racism and hate crimexenophobia, and contribute to social cohesion. However, if the offences cannot be prosecuted effectively, they become little more than an empty gesture to those affected by hate crime, and this may be counterproductive. Procedural problems can also put defendants at risk of wrongful conviction. If this is the case, rather than extending the offences to cover additional characteristics, perhaps they should be repealed.

There are a number of procedural problems arising from the structure of the existing racially and religiously aggravated offences which can prevent effective prosecution. These relate primarily to alternative charges, alternative verdicts and inconsistent verdicts.

Alternative charges

Aggravated offences are aggravated versions of pre-existing offences, set out in the Crime and Disorder Act 1998. These pre-existing offences will be referred to as ‘basic offences’. The 11 basic offences which can become aggravated include various forms of assault, criminal damage, various public order offences, and harassment and stalking offences. In order to be convicted of an aggravated offence, the prosecution must prove that the defendant committed the basic offence, and that it was aggravated. The aggravated offences have higher maximum sentences than the basic offences.

A basic offence will become aggravated if there was a demonstration of hostility towards the victim based on their race or religion, or if it was motivated by hostility towards a racial or religious group. So, when an aggravated offence has been committed, a basic offence will also have been committed.

Where there is evidence that an aggravated offence has been committed, the prosecution prefers to charge the accused with both the aggravated and basic versions of the offence. This avoids the problems caused by charging only one of the offences. For example, if only the aggravated offence is charged, and the prosecution can prove that the accused committed the basic offence, but not that is was racially or religiously aggravated, then the accused must be found not guilty. The accused will not be held liable for the basic offence.  On the other hand, if the accused is charged with both offences, and the more serious aggravated offence cannot be proved, there is an option to convict of the basic offence.

Yet, charging both offences has created problems. The most significant problem is the potential for charge bargaining.  Some prosecutors may be willing to accept a plea of guilty to the basic offence on the condition that the aggravated charge is dropped. Although it is the policy of the Crown Prosecution Service not to accept a plea to the basic offence alone, responses from practitioners to the Law Commission’s consultation, as well as some recently published conviction and sentencing statistics, suggest that this does occur.

Accepting a plea to the basic offence and dropping the charge of the aggravated offence risks creating the impression that hate crime is not taken seriously. Routine ‘charge bargaining’ has the potential to reverse any positive communicative effect of the law. Instead of assuring the public that it is wrong to target individuals because of their personal characteristics and that such conduct will not be tolerated, we could be left with an empty political gesture which is unlikely to influence attitudes or deter potential offenders, and is likely to dishearten, and further marginalise, the very people which the offences are intended to protect.

Alternative Verdicts

Where an aggravated offence is tried in the Crown Court, the judge can leave to the jury an alternative verdict. This means that, instead of charging both the basic and aggravated offence, the prosecution need only charge the aggravated offence, and the jury will still be allowed to convict of the basic offence if the aggravated element cannot be proved beyond reasonable doubt. There is no provision for returning alternative verdicts in the magistrates’ court.

Allowing the jury to return an alternative verdict, rather than considering only the aggravated offence, creates risks for the both the prosecution and the defence. For the prosecution, there is a risk that the jury will convict of the basic offence when they otherwise would have convicted of the aggravated offence (in practice, juries can be reluctant to convict defendants of aggravated offences). For the defence, there is the risk that the defendant will be convicted of the basic offence when they otherwise would have been acquitted.

However, the benefits of allowing juries to return alternative verdicts outweigh these disadvantages. The primary benefit is that the defendant is less likely to be wrongfully convicted of the aggravated offence in circumstances where he clearly committed the basic offence, but the aggravated element cannot be proved. If there is no option of returning an alternative verdict, the jury may be tempted to convict of the aggravated offence so that the defendant does not get away with the basic offence, rather than because the defendant actually committed the aggravated offence.

Unfortunately, in practice, judges do not always give the jury the option of convicting of the basic offence instead of the aggravated offence. This means that juries are sometimes left with a difficult choice between either 1) letting the defendant get away with the basic offence, or 2) convicting them of a more serious offence than they committed.

Inconsistent verdicts

Sometimes a defendant is tried for two or more aggravated offences arising out of the same incident. For example, in the case of Dossett [2006] EWCA Crim 709, it was alleged that the defendant had confronted a parking attendant, shouted at her, including telling her to ‘go back to your fucking country’, grabbed her jacket to see her identification number, and continued to shout and threaten her. He was charged with racially aggravated assault and a racially aggravated public order offence. The words ‘go back to your fucking country’ constituted the evidence of racial hostility for the purposes of both charges. Yet, he was only convicted of the racially aggravated public order offence. Instead of being found guilty of racially aggravated assault, he was found guilty of an alternative charge of basic assault. Dossett appealed against the convictions, arguing that they were inconsistent (either both of the offences had been aggravated or neither had been aggravated). Although the Court of Appeal upheld the convictions, it is difficult to see how Dossett could have been guilty of one of the aggravated offences, but not the other. It is possible that he was under-convicted of the basic assault (i.e. he had actually committed a racially aggravated assault) or over (and wrongfully) convicted of the racially aggravated public order offence (i.e. he was guilty of a basic public order offence, but not the more serious aggravated version).  This case is not an isolated incident. For example, the same issue is evident in the more recent case of Mihocic [2012] EWCA Crim 195. Throughout the criminal law, appeals on the ground of inconsistent verdicts are not uncommon.

A solution

In large part, these procedural problems stem from the structure of the racially and religiously aggravated offences. Because of this, it is likely that a significant change in the law would be necessary to rectify the problems. However, a more straightforward solution would be to repeal the offences and rely on existing sentencing legislation to deal with the conduct currently covered by the aggravated offences.

Sections 145 and 146 of the Criminal Justice Act 2003 require judges to increase the sentence for any offence (other than an aggravated offence) where there is evidence of a demonstration of hostility, or a hostile motive, on the basis of race, religion, disability, sexual orientation or transgender identity. The judge must declare in open court that he has made this finding of hostility and that he has increased the sentence as a result.

There are concerns that these sentencing provisions are not currently used as rigorously or consistently as they should be, and that they do not have the same symbolic or communicative function as criminal offences. In response to this, the Law Commission has recommended improvements to the operation of the sentencing provisions. These include specific guidance for judges on when and how to apply the provisions, as well as reforms to allow the application of these provisions to show on an offender’s criminal record. If these recommendations are put in place, the sentencing provisions could be applied consistently, and could also encompass the desired symbolic and communicative function of the aggravated offences.

Repealing the aggravated offences could be perceived as a reversal of the progress which has been made over the past two decades to tackle racism and other prejudices. But if procedural problems result in offences which cannot be enforced properly, they become little more than an empty gesture. Procedural problems also create the potential for injustice to those accused of wrongdoing. Hopefully, anxiety about repealing the offences could be reduced through reassurance that the sentencing legislation is still hate crime law and that by eliminating the procedural problems stemming from the aggravated offences, and improving the operation of the sentencing provisions, hate crime can be dealt with more fairly and effectively.

For a more detailed account of the procedural problems associated with the racially and religiously aggravated offences, see A Owusu-Bempah, ‘Prosecuting Hate Crime: Procedural Issues and the Future of the Aggravated Offences