posted on Sun 11 Dec 2016 9:07 PM
Briefing and Resolution on International Judicial Cooperation on Counter-Terrorism

Tomorrow (12 December), Council members will hold a high-level briefing 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. Jean-Paul Laborde, Executive Director of the Counter-Terrorism Committee Executive Directorate (CTED), Dorcas Agik Oduor, Deputy Director of the Office of the Director of Public Prosecutions in Kenya, and Robert Strang, Executive Secretary of the International Institute for Justice and the Rule of Law in Malta, will brief the Council. At the meeting, the Council is expected to adopt a resolution aimed at strengthening mechanisms for judicial cooperation.

This will be the first resolution focusing particularly on international judicial cooperation in relation to counter-terrorism, but the promotion of such cooperation has been a long-time objective 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. However, a concept note circulated by Spain ahead of the meeting highlighted how, whether due to lack of resources or the existence of slow and complicated proceedings, judicial cooperation is still insufficient. Against this backdrop, the draft resolution prepared by Spain aims at encouraging such cooperation, particularly regarding mutual legal assistance and extradition.

The draft resolution was circulated two weeks ago and Council members have had several rounds of negotiations. The draft contains significant new language encouraging member states to cooperate. For example, it calls upon member states to consider establishing appropriate laws and mechanisms that allow for the broadest possible international cooperation, including the appointment of liaison officers, police-to-police cooperation, the creation and use of joint investigation mechanisms, and enhanced coordination of cross-border investigations in terrorism cases. It seems that some Council members pushed for qualifiers such as “where appropriate” in order to move away from too prescriptive a text.

As an example of new language in the draft, building on the 2010 CTC policy guidance, the draft calls upon member states to review and update extradition and mutual legal assistance laws in connection with terrorism-related offences, and to simplify these by enhancing implementation and promoting the use of electronic transfer of requests to expedite the proceedings between central authorities. The draft also calls upon member states to make sure that central authorities in charge of mutual legal assistance and extradition have adequate resources, training and legal authority, in particular for terrorism-related offences.

The return of foreign terrorist fighters is also mentioned in different provisions of the draft. The Madrid guiding principles developed by the CTC in 2015 highlighted how the employment of rigid prosecution policies and practices against foreign terrorist fighters can be counterproductive. These principles advocated that member states should consider alternatives to incarceration, as well as the reintegration and possible rehabilitation of returnees, prisoners and detainees. A previous version of the draft included a reference to the reintegration of returnees, but this was deleted in the negotiation process.

Another issue in the negotiations seems to have been how to refer to violations of human rights in the context of counter-terrorism. The final text reaffirms that those responsible for terrorist acts, and violations or abuses of human rights in this context, must be held accountable.

The draft directs the CTC, with the support of CTED, to discuss efforts to promote international law enforcement and judicial cooperation in counter-terrorism matters with member states and international organisations, identify gaps and trends in current international cooperation, and identify areas where technical assistance can be delivered by entities of the Counter-Terrorism Implementation Task Force (CTITF). It also requests CTED to prepare a report – with the assistance of the UN Office on Drugs and Crime and in consultation with the CTITF – on the current state of international law enforcement and judicial cooperation related to terrorism, identifying major gaps and providing the CTC with recommendations to address them within ten months. The CTC is expected to update the Council in twelve months on the implementation of this resolution.

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 need to be involved in implementing Council resolutions.