In December 2019 the United Nations Counter Terrorism Committee Executive Directorate (CTED), with the support of the traditional alphabet soup of other U.N. organizations focused on counter-terrorism, promulgated their “Guidelines to facilitate the use and admissibility of evidence in national criminal courts of information collected, handled, preserved and shared by the military to prosecute terrorist offences.” The (perhaps overly ambitious) objective of the Guidelines is to provide “a broad range of relevant stakeholders” information on how to address questions of admissibility that arise in conflict or post-conflict situations (p. 6). It has to be said though that there seems to be a rather large focus on the military, who are not usually trained criminal investigators, and not ideally suited to take the lead on roles such as evidence collection.
The Guidelines are structured, after its introduction (Part I), to provide General Guidelines (Part II), moving to discuss Mandates and Co-operation (Part III), Jurisdiction and Legal Challenges (Part IV), and Military Practice (Part V), and consists of twenty eight “general” policy guidelines that range from the normative, through the hortorary, to, at times, statements of the obvious. For space reasons this post will not cover all of the issues addressed in the Guidelines. Rather, it draws out some general legal themes, accompanied by some brief commentary. It is intended to provide a lawyer’s analysis; its broader policy implications must await the attention of those more expert in those areas.
The Status of the Guidelines
The first thing to note is the status that the Guidelines seeks to assert for itself. It is at one level (in spite of the fact that anecdotally it seeks to be influential within the U.N. system, and seems primed to do so) it claims to be humble in its claimed relevance, stating that it is a preliminary set of views on a hugely complex issue that must be further refined, and are as such, an interim basis for discussion at the national level (p. 3). Therefore, at one level, the Guidelines purport to be barely even soft law, but to treat it as such would be simplistic, in that it mixes law, policy, and practice in a manner that is not always clear as to what within it is to be considered binding, advisable, and practicable. This means that care needs to be taken in assessing the authority of each part of the Guidelines and their accompanying commentary, as not all parts have an identical, or even similar normative status, and it can be equivocal on certain points. It is notable that this “mix and match” approach to matters of such importance is unlikely to satisfy international lawyers. At the very least, the Guidelines present a reader beware situation.
One area in which the Guidelines are frustrating is in its deployment of sources of legal authority, the basis for which is not explained, and throughout, mixes the binding (e.g. Guidelines 7 and 12), non-binding (e.g. Guidelines 6 and 7), and what comes across as reasonable to the authors of the report in reconciling various views on a particular issue (e.g. Guideline 11 on sharing information bilaterally). At times (e.g. section IV, and Guidelines 3 and 8), the Guidelines simply state the obvious, which is unobjectionable, and the points (e.g. on promoting co-operation) may bear repetition. This lack of clarity makes it difficult to evaluate where the Guidelines claim law, practicality, or the authority of reason, as supporting its conclusions.
The Guidelines document itself states that it is based on “several sources, including international law, and the practice of some member States” (p. 3). These States are not, however, identified. And there is little in the document to assuage a feeling that the “practice” referenced is solely that of wealthy and powerful Western States (see e.g. Guideline 13). It may be that it is not the case, but the failure to identify the relevant States examined when it comes to practice, invites, for example, post or neo colonial critiques. It is worth bearing in mind that the original basis for the Guidelines was the perceived scourge of “Foreign Terrorist Fighters” (“foreign” to whom being a question left unanswered), before its remit was expanded to be applicable more generally, a worrying development, as the absence of a clear definition allows counter terrorist powers to be rolled out into other areas. Examples of this counterterrorism creep abound.
Normalization as well as externalization/universalization appears to have raised its head here, alongside the use of the term “battlefield” evidence, however, the term was eventually dropped, deliberately, so the Guidelines could be framed as being of a more general applicability. However, it appears these changes were made with little consultation with relevant stakeholders.
Reflecting this the Guidelines’ attention seems to focus solely on the practice and wishes of Western States, rather than fully integrating the perspectives of all relevant actors. Many of those other actors are far closer to the “front lines” in relation to the issues the document covers when compared to the States whose practice seems to have been the cynosure of the drafters. Despite this apparent narrow focus on Western States, the drafters of the Guidelines explicitly claim that they sought to engage all relevant actors (listed on p. 6) including, among others, the military, law enforcement officials, and national policy makers. That itself may have been a Sisyphean task, but it bears more than a passing mention that these groups are all State actors. Hence it is no surprise that the Guidelines’ concentration is decidedly upon the technical/prosecutorial, with an emphasis on facilitating the work on those operating in these areas, and occupying these roles (although see p. 27).
Defense lawyers and rights do not get a great deal of attention, although the rule of law does raise its head fairly frequently, but without much specificity. Most notably (and conveniently for the drafters), with limited reference to the full panoply of obligations States owe criminal defendants under international law.
In such a complex and controversial area as is covered by the Guidelines, such methodological fogginess is unhelpful, especially given its links to the authority of the work, and its clear intention to influence its (State-based) audiences.
The lack of a clear methodology is a microcosm of a larger issue with the Guidelines. Although some terms are explained (such as “foreign terrorist fighter” – defined on p. 15 with reference to Security Council Resolution 2178), for reasons of ecumenicism, key terms remain undefined, and where there is such specification, they can be partial, in at least one of the senses of the terms being defined.
To take one example, the Guidelines speak of the rule of law as meaning, for the most part as compliance with the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR). While the provisions of the ICCPR may be useful in many instances (for example, in providing fair trial and accompanying rights), the applicability of these rights (in particularly extraterritorially) is not taken into account by the CTED.
In addition, the Guidelines document does not speak of the specific obligations States may also have under regional treaties that may be the basis of significant obligations, such as European, African, or Inter-American multilateral human rights instruments. The practice of States needs to be appraised against the backdrop of all of the legal obligations they have, lest we fall victim to the temptation to universalize regional or local specifics. Although the Guidelines document clearly prefers to rely upon U.N. and global sources, it does occasionally refer to regional practice and authority (e.g. pp. 15, 17, 21, 27, 30), but nowhere is the relative normative weight of these varying sources explained. It could be countered that the Guidelines does not seek to set out the law, and only looks to help policy makers assist States to “develop their domestic policies and legal framework in this area” (p. 3). However, these frameworks will differ between States, and depend upon their specific obligations, so the failure to define what that framework may be is unfortunate, as there is a risk of treating the parochial as the worldwide.
The same critique (of non-definition) might be thought to apply to the proverbial Pachyderm in the room of the definition of terrorism itself. At no point does the Guidelines come close to setting down a definition of terrorism, even for its own purposes. Given the absence of any global agreement on such a definition, this may be understandable, but owing to precisely that point, and the vastly different definitions of terrorism existing at both the international and domestic level profligately referred to in the February 2011 decision in the Ayyash case of the Special Tribunal for Lebanon arguing for a general customary law definition, that proved little other than dissensus, as Ben Saul has shown. This makes the ambit of the Guidelines document itself uncertain, and perhaps open to abuse, in spite of its assumed good intentions. It is not enough to hide behind the lack of notional normative force, especially when it is intended to refer to, among other things, legal obligations. This danger could be compounded should the Guidelines be referenced or treated as persuasive legal authority by key counterterrorism bodies, such as the U.N. Security Council.
To sweeten the pill of the above, there are times when the Guidance document is very helpful. For example, it draws a useful distinction between “information” and “evidence” as two separate concepts, especially in the context of admissibility (p. 3). This is exacerbated in this regard by, as the Guidelines accept, the reality that intelligence gathering in this regard may occur more for operational reasons than for the possibility of future prosecution. The relationship of this distinction to questions of Direct Participation in Hostilities, and the nature of intelligence gathering in the context of an ongoing conflict, is one which the Guidelines raises (at p. 13), but does not resolve. These challenges, however, have not stopped the increased use of intelligence evidence in terrorism prosecutions, in spite of concerns about its reliability, and difficulties in challenging or countering it. Hopefully, the Guidelines do not serve to exacerbate or legitimate this troubling trend. It may simply be the case that in such a tentative, consensus-seeking document, this vexed issue could not be expected to be settled, but the cost of compromise here has been utility.
Context and Admissibility
Quite rightly, the Guidelines deal with the difficulty of the context in which evidence is gathered, often in conflict situations, by the military, who are not, for the most part, trained criminal investigators. In keeping with its focus, the Guidelines document tends to view this evidence-gather as occurring “abroad.” This naturally raises considerable practical and operational difficulties, as well as the potential for conflicts between the purposes for which the evidence is being gathered (i.e. mission purposes versus possible future criminal prosecution). All of these are candidly and quite well explained at pages 9-10 and in Parts V and VI, which contain useful lists of good practice, which is to be commended.
That said, the focus – with some nods to the difficulties of reconciling the rule of law and human rights principles with admissibility standards (see pp. 20-21) – still very much remains on ensuring successful prosecutions. The proverbial thumb is very much on the prosecutorial side of the scale. This is problematic, in that, at the domestic level, “terrorist” prosecutions often involve the relaxation of evidentiary burdens and other rules. The consequences of this are often predictable, unfortunate, and sometimes, in time, officially regretted.
Legal admissibility is also a difficult and fissiparous area, which depends on various international and domestic approaches, and at the former level, trying to find a middle path that can accommodate both systems of detailed rules, and freer forms of proof that are often (broadly and semi-accurately) associated with the common law and civil law systems is no easy task. Given the differences between those systems, and balances each domestic jurisdictions draw between their universal and regional duties, and their municipal systems, as well as the fact that the Guidelines deals with co-operation between such jurisdictions, means that this is one of the areas in which the document can hardly enter into useful detail (see e.g. Guidelines 8-12), demonstrating that there may simply be no existing consensus that can be reported upon. Perhaps therefore, to be sanguine, the CTED cannot be blamed for that, though some may accuse it of drafting the Guidelines in an effort to overstate the degree of international consensus in order to facilitate an increase in terrorism prosecutions.
This article is not intended as a Jeremiad against the CTED or its Guidelines document. Clearly a great deal of effort has gone into its development, but owing to the subject, the CTED simply cannot claim to be definitive in many key areas. In this case, the Guidelines represents a “first swing” at a complex and divisive issue, and thus is intended as an interim measure. This framing, though, has its own costs. That which is written down tends to become a frame of debate, structuring thinking and thereby becoming sedimented into discussions, irrespective of its provenance (which here is an unelected, questionably diverse, and unaccountable body).
Furthermore, owing to the level of genuine disagreement, the Guidelines can, allusively be spoken of as a Monet picture – beautiful when viewed from afar, but when examined closely, difficult to draw out specifics. This is a problem here, as in the topics the Guidelines document deals with, the devil tends to be in the details, an area that the document often fails to deliver on. Instead, the document frequently stitches together useful discussion with vague terminology and various sources of differing authority. Therefore, while the Guidelines can generally be received as muted and useful, but should be approached from the perspective of critical engagement, rather than uncritical, wholesale adoption. It is the purpose of these initial impressions to assist in this process. Framing the Guidelines properly – as a tentative beginning to a much longer-term conversation around evidence gathering and terrorism prosecutions – will be made especially more difficult if current moves to have them positively mentioned by the Security Council (especially in a Resolution) come to fruition.