A Briefing on European Developments in Accounting for and Advancing Counterterrorism Actions

Fallout from European action during the “War on Terror” is ongoing in national and regional courts. The European Court of Human Rights has taken up a number of cases related to secret detention, with decisions rendered against Poland and Macedonia. In December 2012, in the case of El-Masri v. “the former Yugoslav Republic of Macedonia,” the Court found multiple violations of the European Convention on Human Rights, including violations of articles 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 8, (right to respect for private and family life) and 13 (right to an effective remedy). In July 2014, the Court issued judgments in two cases, Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (more here) finding multiple violations of the Convention. In addition to these European Court decisions, ongoing domestic litigation and advocacy in a number of other European states are worth noting. This post gives a brief synopsis of some of that litigation and domestic action. In addition, recent responses by the UK government to the threat posed by ISIS are also highlighted.

In April, the Open Society Justice Initiative filed a series of freedom of information actions before the Danish Ministry of Justice, the Security and Intelligence Committee, the Ministry of Defense and the Defense Intelligence Service and Independent Police Complaints Authority asking for release of information allegedly held by the Danish government on its involvement in the targeted killing of Anwar al-Awlaki, killed in a drone strike in Yemen in 2011. The request follows media reports that the Danish intelligence services had recruited a Danish citizen and friend of Al-Awlaki’s, Morten Storm as a double agent, and that one of his tasks was to work closely with the CIA and Danish intelligence to track down and pinpoint al-Awlaki so he could be precisely targeted.  In September 2014, Storm came out with a book (written with CNN staff) and a special series on CNN describing in detail his work as a special agent and his involvement with al-Awlaki. He had previously gone public with some of his allegations in Denmark, but the CNN collaboration fleshes out his story and has put the spotlight back on the issue in Denmark. It appears that Storm has since had a falling out with the various agencies he was working with, and one reason he decided to ‘go public’ was because he was not receiving any protection from Danish, British, or American authorities, in the face of ISIS threats against him. He lives in hiding somewhere in Britain.  The Danish authorities are likely to be under sustained external and internal pressure to further reveal the role of its intelligence agencies in the recruitment process and the killing of Al-Awlaki.

On Sept. 17, CNN printed an update discussing potential changes within Denmark as a result of Storm’s actions. The end of that story reads:

Bonnischen [current head of Danish Security & Intelligence] told CNN new oversight rules for PET are now being discussed which would require the agency to submit an annual report to a parliamentary oversight committee on how many agents it was running and how they were being run.

Magnus Ranstorp, one of Scandinavia’s leading counterterrorism academics, told CNN Storm’s revelations had “opened a Pandora’s box of ethical problems which will probably lead in the future to PET’s ability or leeway to act being restricted.” It is rare indeed for an intelligence informant to go public about his work. In Storm’s case the disclosures may change the law — and radically change the way his former employer works.

In April, Spanish Central Criminal Court investigative judge Pablo Ruz ordered continuation of the investigation into members of the US military and intelligence services for the offenses of torture and war crimes allegedly committed against former Guantanamo Bay detainees Abdul Latif Al Banna, Omar Deghayes, Hamed Abderrahman, Ahmed and Laheen Ikassrien. The allegations concern their treatment in Guantanamo and elsewhere. Notably, this investigative judge refused to apply a legislative revision of the Spanish universal jurisdiction rules, which sought to limit the competence of Spanish courts to investigate crimes under international law only when the suspected person is “resident in Spain”. Judge Ruz ruled that this provision was contrary to Spanish obligations under international law including the Geneva Convention and Additional Protocol I. Following his decision Judge Ruz renewed his request to the US to know the status of investigations in light of the principle of complementarity.

In May 2014, the Advocate General to the Supreme Court in the Netherlands issued his view that in the case of Sabir K., a Dutch Pakistani national who is suspected of terrorism, a US extradition request should be denied on the basis of non-refoulment. In July 2013, the Dutch Court of Appeal had ruled that extradition would be prohibited on the grounds of uncertainty regarding the role of US authorities in allegedly subjecting Sabir K. to torture in Pakistan. The Supreme Court did indeed uphold this decision, on July 11, 2014. See here, and court documents (only available currently in Dutch).

In May, the UN Committee Against Torture (CAT) adopted its concluding observations on the compliance by Lithuania of its obligations under the CAT. It expressed its concern that parliamentary investigations had failed to determine whether CIA detainees were held in or transmitted through Lithuanian territory. The Committee has urged Lithuania to complete its internal investigations into allegations of CIA rendition and secret detention programs within a reasonable time.

More recently in the United Kingdom, we have seen a series of political and legal responses to the threat of ISIS. Following the NATO Summit in Wales in September 2014 Prime Minister David Cameron called for new law to give police the temporary power to seize a British National’s passport if a citizen is suspected of attempting to travel overseas to support ISIS. Work to prepare legislation has begun. CNN reports that “UK authorities currently estimate that 500 Britons have gone to Syria and Iraq to fight with Islamist groups”.

In the House of Commons Cameron outlined two “gaps” in Britain’s fight against the threat of terror at home. The first gap pertains to stopping would be jihadists and the second to preventing the return of foreign fighters. Cameron said the existing aviation policy would also be codified.

“Airlines will have to comply with our no-fly list arrangements, give us information on passenger lists and comply with our security screening requirements. If they do not do this, their flights will not be able to land in Britain.”

Not unsurprisingly, Britain’s intelligence agencies and police have indicated that stronger powers were also needed to manage the risk posed by suspected extremists already based in the UK. Cameron said he would introduce legislation giving British authorities new powers that would improve their ability to track suspected ISIS supported by providing “enhanced use of exclusion zones” or “relocation powers.”  These mirror powers utilized by the British government during the conflict in Northern Ireland, when emergency powers of exclusion enabled a form of ‘internal exile‘ to operate within the territory of the United Kingdom.   The use of exclusion orders were first facilitated under the Prevention and Suppression of Terrorism Act, first enacted in 1974. Their use was subject to sustained national and international critique throughout the conflict. The powers of exclusion being sought are claimed to compliment the existing terrorism prevention and investigation measures (TPIMs) which allow spacial and geographic restriction on terror suspects. Specifically, TPIMs allow overnight residence at a specified address, GPS tagging, reporting requirements, and restrictions on travel, movement, association, communication, finances, work and study.

All these events come in the wake of the UK government raising of its terror threat Friday September 5 from “substantial” to “severe” (the forth of five levels) in response to events in Iraq and Syria.  Cameron said the group poses a “greater and deeper” threat than Britain has known before. Cameron has indicated that military force is one of the measures that can be taken against ISIS but indicated that aid, diplomacy and political influence would be the foundation of Britain’s response.

[Editor’s Note: This post has been revised to include attributions for certain factual statements to Laura Smith Spark, UK Police arrest 9 men suspected of terror offenses in London September 25, 2014 http://www.cnn.com/2014/09/25/world/europe/uk-terror-arrests/] 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).