A CASE FOR RESTRICTING FAIR TRIAL
RIGHTS OF THE OFFENDERS INVOLVED IN INTERNATIONAL TERRORISM AND ORGANISED CRIME
By
DR.
USMAN HAMEED*
Introduction:
The UN sponsored international
conventions on terrorism and organised crime require states parties to provide
fair trial rights to the offenders. The object of these conventions is to
facilitate state cooperation in law enforcement through integration of national
justice systems. While the conventions require provision of rights
in accordance with international human rights law, states, in practise tend to
tailor these rights to suit the needs of their domestic justice systems. This
paper will look into the impact of fair trial rights rules of these conventions
on the prosecution and trial of the offenders at national level.
It will be suggested that the crimes established by the international
conventions differ from ordinary domestic law crimes. Domestic law spells out
principal crimes only, whereas, the international conventions also embrace acts
preparatory to crimes such as planning, conspiracy, contribution, organising
and financing. This indicates that the purpose of establishing domestic law
crimes is to enable law enforcement agencies to react once a crime is
committed.[1] On the other hand, the crimes set forth by the international
conventions are designed to combat the proscribed acts at planning stages.[2] Because
crimes at planning stages tend to have low threshold of proof, their prevention
and detection calls for interference with fair trial rights of the suspects.
Thus,
the exceptional nature of the crimes set forth by the international conventions
calls for corresponding adjustment of fair trial rights. This paper will
establish that such adaptations are already underway in several national and
regional jurisdictions. However, the adaptations are not uniform and
are subject to judicial review of national and regional courts whose approaches
tend to be inconsistent. This may have adverse implications for state
cooperation in law enforcement. Therefore, the need of the hour is to evolve
common standards to restrict fair trial rights in cases involving international
terrorism and organised crime.
Part
–I Desirability of restricting fair trial rights in cases involving
international terrorism and organised crime
1.1 Case study:
‘We cannot
brutalise the law in the name of terrorism.’ This was the observation of Judge
of Pakistan, while dismissing criminal proceedings against Hafiz Muhammad
Saeed, a terror suspect allegedly involved in Mumbai terror attacks 2008.[3]
In the aftermath
of Mumbai, India submitted a request to the United Nations Security Council
(UNSC) to place the group Jamat ud Dawa
and its leader Hafiz Saeed on the list of banned individuals / entities.[4] Furthermore, India requested the extradition
of Hafiz Saeed through Interpol.[5] When the Security Council designated Jamaat-ud-Dawa as a banned entity and
the Interpol issued red corner notices against the suspect for his extradition
to India, the law enforcement authorities of Pakistan took Hafiz Muhammad Saeed
into custody by invoking section 11-F-4 of the Anti- Terrorism Act 1997.[6]
This enactment allowed detention of an individual addressing religious
gathering to encourage support of a proscribed organization or to further its
activities.
The
accused challenged his detention in the Lahore High Court of Pakistan, under
article 10 of the Constitution of Pakistan 1973 which provided guarantees
against arbitrary arrest and detention.
The petition was accepted and the defendant was set free.[7]
The Court held that neither the organisation headed by the accused was placed
in the list of banned entities by the government of Pakistan, nor the charges
levelled against him empowered the police to arrest him without warrant.[8]
Thus, in court’s view, the detention amounted to violation of constitutional
guarantee of freedom from arbitrary arrest and detention.[9]
This decision led to further straining of already tense relations between the
neighbouring states of India and Pakistan. More importantly, it obstructed
state cooperation in law enforcement in the terror stricken region of South
Asia.[10]
The
case brings to light the need for restricting fair trial rights in cases
involving cross border terrorism and organised crime. In this case, the Court
had to act within the ambit of state constitution which provided under its
article 10 that no person shall be subjected to arrest and detention, save in
accordance with law.[11]
The relevant law was section 11-F-4 of the Anti- Terrorism Act 1997 which did
not empower the police to arrest without warrant. Moreover, the charges
levelled against the accused did not inspire confidence because the government
of Pakistan had omitted to ban the organisation headed by him notwithstanding
the clear instructions of the Security Council to do the same.[12]
Thus, the Court was left with no option but to order his release.
On account of
national law’s incompatibility with international obligations, the suspect got
away with his extradition. Hence, the real causality was inter-state
cooperation in law enforcement. Had the
national law left room for detention of suspect till the finalization of
extradition proceedings, requirements of state cooperation would have been
satisfied.
Part –II Kinds of fair trial rights guaranteed by the
international conventions
2.1 Nature of the Crimes:
Multilateral
conventions regulating international terrorism and organised crime require
criminalisation of planning, conspiracy, financing, organising, abetment and
participation in addition to criminalisation of the principal act.[13] Since the object
of these provisions is to prevent crimes at the stage of planning, mere
criminalization would be meaningless unless it is backed up with enhanced
powers of investigation and trial. Accordingly, the creation of these crimes
entails: enhanced surveillance of the private lives of the suspects, restriction
on freedom of their movement, power to authorize detentions on the basis of
suspicion and to record convictions on the basis of extra judicial confessions.
All these measure have a bearing on fair trial rights of the suspects.
2.2 Kinds of fair trial rights protected under the
International conventions on terrorism and organised crime:
Besides requiring
states to criminalise preparatory offences such as planning, organising,
financing and participation, the international counter-terrorism and organised
crime conventions oblige states parties to guarantee fair treatment to the
offenders.[14] For example,
article 14 of the Terrorist Bombings Convention 1997 reads ‘accused
shall be guaranteed fair treatment including enjoyment of all rights and
guarantees in conformity with the law of the state in the territory of which
that person is present and the applicable provisions of international law
including the international law of human rights.[15] According to the literal interpretation of
this provision, states parties have no choice but to provide fair trial rights
as contained in international human rights instruments.
Human rights
treaties classify fair trial rights into two categories.[16] First category
contains those rights which cannot be derogated under any circumstances.[17] These include
right to public hearing before an independent, fair and impartial tribunal,
right to be presumed innocent, right to have the notice of allegations, right
to have legal assistance, right to appeal, non retroactivity of penal laws and
right to non-discrimination or equality before law.[18]
The second
category comprises those rights which can be derogated under the conditions of
emergency but the emergency must be sanctioned by law and the violation of
rights must be proportionate to achieving the objectives of emergency.[19] These rights
include right to be produced before the court promptly after arrest, right to
protection against self- incrimination, right to confront witnesses and right
to hearing within a reasonable time.[20]
Clearly, human
rights treaties do not allow denial of fair trial rights in general, where they
do so allow; denial has to be given effect under strict conditions. However,
there have been situations where states had restricted both derogable and
non-derogable fair trial rights in cases involving international terrorism and
organised crime.
Part-III Grounds on the basis of which fair trial
rights can be suspended by states
3.1 By regarding terrorist threat as national
emergency:
Situation of
emergency is frequently applied as a ground to restrict fair trial rights.
Article 4 of the International Covenant on Civil and Political Rights (ICCPR)
allows states to suspend derogable fair trial rights in situation of
emergency. It also imposes certain
conditions: the emergency must threaten the life of a nation, it must be
officially proclaimed and violation of rights must be proportionate to
realizing the objectives of emergency.[21]
Under the
counter-terrorism laws of several states, the power to determine situation of
emergency lies with the national government. In other words, the national
government may decide in its discretion when a situation has become threatening
to the life of a nation calling for imposition of emergency warranting
suspension of fair trial rights.[22]
For instance,
counter terrorism laws of both India and Pakistan provide for restriction of
the right to public trial, protection against self-incrimination, presumption
of innocence and right to be promptly produced before the court.[23] Similarly, Anti
terrorism and Security Act (ATSCA) 2001 of UK provides for suspension of the
right to be protected against arbitrary arrest and detention.[24] When the denial
of this right was assailed before the House of Lords on the ground that at the
time of legislation there was no emergency justifying suspension, the court
held that it was for the government to determine the situation threatening the
life of its citizens.[25]
In the same way,
when the Indian government’s decision to establish special Anti terrorism
courts was challenged, the Indian Supreme Court held that ‘Parliament possesses powers under Article 248 and entry 7 of list 1 of
the seventh schedule of the constitution of India to legislate the Act. Need
for the act is matter of policy and Court cannot go into the same.’[26]
It
is therefore apparent that the occurrence of widespread terrorist activities
has been treated by states as an emergency justifying the suspension of both
derogable and non- derogable fair trial rights. This argument lends credence
from the jurisprudence of the European Court of Human Rights (ECtHR). The Court
while adjudicating the question of reasonableness in
arrest and detention of suspects, held in Fox,
Campbell and Hartley V. United Kingdom (30 Aug 1990 ) ‘what is reasonable will depend on all attending circumstances. In this
respect, terrorist crime falls into a special category.[27]
The
weakness of the argument, however, lies in the fact that it does not signify
the consistent position of national and regional courts. For example, in Heaney
and McGuinness v. Ireland (2000) the ECtHR held that security and public
concerns of the government cannot justify the suspension of the applicant’s
right to silence.[28] Similarly, the House of Lords held in A (FC) and others (FC) V. Secretary of the
state for Home Department that use of the term national security does not
give the government a green card to adopt measures that violate human rights.[29]
Thus
it can be seen that states tend to suspend both derogable and non derogable
fair trial rights in response to terrorist threat. However, the approach of
national courts in relation to validating these suspensions has been
unpredictable. In other words, the courts determine it on case by case basis
whether a particular measure is proportionate to achieving the objectives of
emergency.
3.2 Obstruction to
justice as a ground of suspending fair trial rights:
Another
ground which is frequently used in domestic laws to restrict fair trial rights
is the obstruction to justice. The security of judges, prosecutors and witnesses
is of paramount importance. Indeed the cases involving terrorism and organised
crime are of sensitive nature and in such cases witnesses would not come
forward if their lives are at risk.
Accordingly, the international conventions oblige states parties to
criminalize obstruction to justice.[30]
In addition, they require states to develop witness protection programs.[31]
While implementing these measures, some states such as Pakistan and India go as
far as denying the offenders right to know the identity of the witnesses
testifying against them.[32] These laws further empower the court to
restrict the right of the accused to cross examine prosecution witnesses.[33]
Moreover, they empower courts to hold in camera proceedings which constitute a
violation of the right to public trial. [34]
Furthermore, where no other witness is forthcoming, these laws empower courts
to record their judgements on the basis of extrajudicial confessions.[35]
Likewise, they make allowance for drawing adverse inference from the silence of
the accused and to record conviction on the basis of electronic evidence. [36]
Perhaps
on the face of it, these measures appear draconian, nonetheless, in some
situations they provide the only way out to successful conclusion of trial. For
example, in January 2011, the supporters of a terror suspect involved in the
brutal killing of a provincial governor of Pakistan stormed a court, because of
which the court had to shift its location.[37]
In such cases in camera proceedings and non disclosure of the identity of the witnesses
provides effective defence against the onslaught of zealots. Thus, obstruction to justice provides another
common ground for suspension of fair trial rights
3.3
Implementing UNSC resolutions:
Another
frequently employed reason for justifying suspension of fair trial rights is
the implementation of the United Nation’s Security Council (UNSC) resolutions
concerning terrorism. The Security Council has established a monitoring system
to oversee the compliance of its resolutions. Some of its resolutions such as
1373 have been passed under the binding authority of Chapter VII of the UN
Charter.[38]
This resolution among other measures, calls for establishing preparatory crimes
such as planning, conspiring, financing, directing organising and inciting the
acts of terrorism. Since the resolution requires states to act at planning
stage, it has obvious implications for fair trial rights.
In
this regard, decision of the European Court of Justice (ECJ) in Kadi and Albarakaat provides useful
insights. [39]
In this case, the court annulled a regulation of the EC Council implementing
the Security Council Resolution 1267 and 1333 which required states to freeze
the assets of persons associated with Osama bin Laden and Taliban. [40]
SCR
1267 established a Sanctions Committee entrusted with the task of designating
the individuals and entities associated with Alqaeda as outlawed. The committee
prepared a list of designated persons containing the names of Kadi and
Albarakaat and forwarded it to the EU Council which implemented the same
through regulation 881.[41]
The regulation was challenged in the Court of First Instance (CF1) which
rejected the petition on the ground that it had no power to revisit the
legislation enforced to implement Security Council’s resolution. However, when
the judgement was assailed, the ECJ accepted the appeal and annulled the
impugned regulation. In its judgement, the ECJ admitted that it had no power to
review the Security Council’s resolutions; however, the court maintained, it
could review the local law implementing such resolutions to see whether the law
was in conformity with fundamental rights as guaranteed by the European
Charter.[42]
By holding that the regulation had breached the petitioner’s right to defend
and to know the evidence against him the ECJ proceeded on to annul the
regulation.
So
there is at least one instance where a regional court annulled a law
implementing Security Council resolution. Nevertheless, the decision has little
relevance for national law outside the European Union. According to one
observer such decisions could only be made where there is a way to implement SC
resolutions in conformity with fundamental rights recognised by the place of
trial.[43]
In any case, it is clear that Security Council’s resolutions on counter
terrorism provide justification to suspend fair trial rights.
Conclusions:
Notwithstanding
the obligation imposed by the International counter-terrorism and organised
crime conventions to provide fair trial rights to the offenders in accordance
with international human rights law, states tend to suspend these rights
whenever it suits their needs. The grounds most frequently applied for
suspending these rights include obstruction to justice, implementing
resolutions of the Security Council and regarding acts of terrorism as national
emergency. However, rulings of national and regional courts have been
inconsistent with respect to acceptance of these grounds as lawful. Such
conflicting rulings may impact adversely the treaty objective of promoting
state cooperation in law enforcement. To
integrate national approaches, it seems reasonable that the grounds which are
most commonly applied to suspend fair trial rights should be recognized as
legitimate. One way of doing this could be to include these grounds in the
implementation programmes of United Nation’s office on Drugs and Crime (UNODC)
and in the monitoring frameworks of the Counter-Terrorism Committee (CTC). When
evaluating state compliance with human rights obligations, these factors should
be taken into consideration.
--------------
* The
author holds a PhD degree in Public International law from University of
Glasgow, UK & is currently working as Director Academic at University of
Sargodha Pakistan.
[1]. UNODC’s legislative Guide to Universal
legal regime against Terrorism p.7 available at www.unodc.org/documents/terrorism/LegislativeGuide2008.pdf.
[2]. UNODC’S Legislative
Guide to the Universal Legal Regime against Terrorism 2008 at p.7 available
at www.unodc.org/unodc/en/treaties/CAC/legislative-guide.html.
[3]. The News International
Pakistan (13/10/2009) available at http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=24984&Cat=13&dt=13/10/2009
last visited 30/05/2011.
[4]. The New York Times (9
December 2008) available http://www.nytimes.com/2008/12/10/world/10nations.html
last visited 30/05/2011.
[5]. Ibnlive.in.com
(27/09/2009) available athttp://ibnlive.in.com/news/interpol-notice-against-saeed-adds-to-pak-worries/100041-3.html.
[6].
[7].
[8]. as required by the
first schedule of the Antiterrorism Act 1997.
[9]. Ibid.
[10]. In 2009,
Indian Home Minister P. Chidambaram alleged that the Pakistani authorities had
not shared any information about the suspects and Indian Prime Minister
Manmohan Singh publicly stated that Pakistan has not done enough to bring the
perpetrators of the attacks to justice. As a consequence, Pakistan moved troops
towards the border with India voicing concerns about the Indian government's
possible plans to launch attacks on Pakistani soil if it did not cooperate. See
Times of India (1 December 2009) available at http://articles.timesofindia.indiatimes.com/2009-12-01/india/28083476_1_headley-and-rana-headley-rana-home-minister.
See also Wall Street Journal (23 Nov 2009) Fareed
Zakaria, transcript of CNN interview with Manmohan Singh available at http://www.livemint.com/2009/11/23211836/Pakistan-has-not-done-enough-o.html. See Times of India (June 6, 2009) available at
http://articles.timesofindia.indiatimes.com/2009-06-16/india/28165262_1_move-troops-taliban-stronghold.
[11]. See article 10(4) Constitution of Pakistan
1973.
[12]. Proscription was required under section
11-B and First schedule of Anti Terrorism Act 1997.
[13]. There is a clear difference between an
attempt and planning, conspiracy or participation. For instance, in case of
terrorism an attempt will be made out when the offender takes a substantial
step in the perpetration of crime such as acquiring hand grenades and
explosives and making statements of using them. On the other hand planning,
conspiracy and participation will be made out even if the offender only
provides financial support to a terrorist outfit having knowledge of its
activities. See article 2(3) of the 1997 Terrorist
Bombing Convention, U.N. Doc. A/RES/52/164.Also see article 2(5) 1999 Terrorist
Financing Convention, 39 ILM 270 (2000) and
article 5(1) 2000 United Nations Convention against Transnational
Organized Crime, 40 ILM 335 (2001).
[14]. See for instance article 2(3) of the 1997 Terrorist Bombing Convention, U.N. Doc.
A/RES/52/164.Also see article 2(5) 1999 Terrorist Financing Convention, 39 ILM
270 (2000). In this
regard it is significant to mention that not only multilateral treaties but
also United Nations Security Council resolutions on counterterrorism clearly
require the states to criminalize conspiracy, planning, financing and
participation in addition to actual perpetration and attempt. See UN Doc. S/RES/1373 (2001) and S/RES/1624 (2005).
[15]. Article 14 Bombings convention 1997,
Article 17 Financing Convention 1999, Article 12 Nuclear Terrorism convention
2005 and article 11 Beijing convention on Civil Aviation 2010. Before the
introduction of inchoate offences into multilateral treaties, fair trial
provisions were imprecise. For instance article 9 of the convention on Attacks
Against Internationally Protected Persons 1973 merely provided that the
offender shall be guaranteed fair treatment at all stages of the proceedings.
Similarly, article 8 of the Hostages convention 1979 provided that fair trial
rights shall be guaranteed as provided under national law.
[16]. The jurisprudence of human rights
monitoring bodies suggests that the term fair trial rights include pre charge
and post charge rights as well as right to due process. Accordingly, all these
right are being discussed collectively at this point. The pre trial rights include freedom from
arbitrary arrest and detention, right to challenge the legality of arrest and
right to be produced promptly before the court.
[17]. See article 4 International
Covenant on Civil and Political Rights 1966 (ICCPR) 999 UNTS 171 and 1057 UNTS
407 / [1980] ATS 23 / 6 ILM 368 (1967).
[18]. The Inter-American Commission on Human
Rights (IACHR) Report on Terrorism and Human
Rights October (2002) p.3 paragraph 247 available at http://www.bringhumanrightshome.org/IACHRExcerpts_on_Fair_Trial_from_Report_on_Terrorism.pdf
[accessed 04/06/11).
[19]. See article 4 ICCPR 1966.
[20]. IACHR Report (2002) supra note 17 at p.3-4
paragraphs 250-253.
[21]. See article 4 ICCPR 1966
[22]. See for instance article 3 of the Anti
Terrorism Act 1997 of Pakistan. “If, at
any time in the opinion of the Federal Government, the commission of terrorist
acts and scheduled offences have become common place in Pakistan it may, by
notification in the official Gazette, declare that it is expedient for purposes
of the prevention and punishment thereof to have resort to the provisions of
this Act and thereupon the powers conferred hereunder shall be available for
use in accordance herewith.”
[23]. See section 21(a) Anti Terrorism Act 1997
of Pakistan and Section 30(1) Prevention of Terrorism Act 2002(
[24]. See sections 21 and 23 of Anti terrorism,
Crime and Security Act (ATCSA) 2001 available at http://www.legislation.gov.uk/ukpga/2001/24/section/23
[accessed 05/06/11].
[25]. A (FC) and others (FC) (Appellants) v.
Secretary Home (Respondent)[2004] UKHL56 paras 19-34 athttp://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm[accessed
05/06/11].
[26]. People’s Union for Civil Liberties v.
Union of India, AIR 2004
SC 456
[27]. Fox, Campbell and
Hartley v. The United Kingdom, Appl.
No. 12244/86; 12245/86; 12383/86), Council of Europe: European Court of
Human Rights, 30 August 1990 at Para 32, available at:
http://www.unhcr.org/refworld/docid/3ae6b6f90.html [accessed 4 June 2011].
[28]. Heaney
and McGuinness v. Ireland, (Application no.34720/97) Judgement of 21/03/01, paragraph 58, availableathttp://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Heaney%20|%20McGuinness&sessionid=71835027&skin=hudoc-en
[accessed 4 June 2011]
[29]. A (FC) and others (FC) (Appellants) v.
Secretary Home (Respondent)[2004] UKHL56 paras 19-34 athttp://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm[accessed
05/06/11].
[30]. See section 23 UNTOC 2000 & Section 25
[31]. See also section 24 UNTOC 2000 &
Section 32 UNCAC 2003.
[32]. See section 21(a) Anti Terrorism Act 1997
of Pakistan and Section 30(1) Prevention of Terrorism Act 2002(
[33]. Ibid.
[34]. Ibid.
[35]. Ibid.
[36]. Ibid.
[37]. http://www.dawn.com/2011/01/06/taseer%E2%80%99s-murderer-mumtaz-qadri-presented-in-atc.html[accessed
05/06/11].
[38]. 2001 Security Council
Resolution 1373 on Threats to International Peace and Security Caused by
Terrorist Acts (UNSC R 1373) at Paragraph 2(d) &(e) UN
[39]. Joined Cases C-402/05 P & C-415/05 P,
Kadi & Al Barakaat v. Council, 3 C.M.L.R. 41 (2008) available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en
[accessed 05/06/11].
[40]. Ibid.
[41]. Ibid.
[42]. Ibid.
[43]. Albert Posch, “The Kadi case: Rethinking
the relationship between EU law and international law”, 15 Columbia Journal of
European Law Online(2009)1-5 at 4.