On Monday, 12 December, 2016 the UN Security Council unanimously adopted a landmark resolution on strengthening international judicial cooperation in countering terrorism. Resolution 2322 aims to enhance the efficacy of international legal and judicial systems in their fight against terrorism through operational collaboration. This is the first resolution adopted by the Security Council on the subject matter of international judicial cooperation, in order to overcome the challenges posed by existing extra-territorial terrorist networks.
The Resolution emphasises five major issues related to counter terrorist activities: (1) mutual legal assistance and extradition, (2) the issue of foreign terrorist fighters and returnees, (3) financing of terrorism, (4) increasing role of information technology in gathering and sharing evidence, and (5) role of multilateral agencies such as UNDOC (United Nations Office on Drugs and Crime) and INTERPOL in preventing terrorist activities.
The resolution calls upon States to use applicable international instruments as a basis for mutual legal assistance and extradition in terrorism cases and to review and update existing laws in view of the substantial increase in volume of requests for digital data. It emphasises the necessity of revising and simplifying bilateral and multilateral treaties of extradition and suggests the need for mutual legal assistance in matters related to counter-terrorism so as to enhance their effectiveness. Some of the proposals such as designation of national central authorities for mutual legal assistance and extradition, regional and cross-regional cooperation, appointment of liaison officers, police to police cooperation, creation of joint investigation and information sharing mechanisms are extremely significant in the present scenario.
The issue of foreign fighters and returnees, one of the principal challenges related to contemporary terrorism, particularly in the context of ISIL/Da’esh fighters in Syria/Iraq, comprises the next major focal area of the resolution. The resolution underlines the importance of international cooperation in stemming the flow of foreign terrorist fighters to and their return from conflict zones. It urges States to share available information regarding foreign terrorist fighters including their biometric and biographic information and emphasises the importance of providing such information to multilateral screening databases. At present, information sharing is primarily based on the bilateral legal assistance mechanism between States, and between the respective national enforcement agencies. The Resolution also calls for the easing of transfer of criminal proceedings from the court of one country to those countries where the main act of terrorism took place, or where most of the evidence is concentrated. It also adds that appropriate sharing and use of intelligence threat data on foreign fighters are central to counter-terrorism measures.
As a means to curb financial assistance to terrorist networks and groups, the resolution suggests that States make financing of terrorism as a serious criminal offense in domestic law, and also enhance international cooperation to deny safe haven to terror financiers. It urges States to extradite or prosecute individuals who support financing of terrorist groups directly or indirectly, and to undertake targeted financial sanctions against such groups under resolutions 1373 (2001) and 2253 (2015).
Other major proposals of the resolution include promotion of the use of electronic communication including the internet and broadening the scope of digital data in terrorism cases, and closer cooperation with UNDOC (United Nations Office on Drugs and Crime), UNESCO (United Nations Educational, Scientific and Cultural Organization) and INTERPOL (International Criminal Police Organization). It also proposes the integration of the INTERPOL’s “I-24/7” police information network beyond National Central Bureaus to other law enforcement entities such as customs and police stations. The resolution also emphasises the need for assisting victims of terrorism, and cautions against deprecating fundamental human rights in the name of counter-terrorism. In this regard, the resolution asks States to ensure that their counter-terrorism laws are compliant with international human rights and humanitarian laws.
Counter-terrorism efforts of the international community, particularly at the multilateral level have been in a stalemate the past few years due to various reasons. At the conceptual level, lack of a standard definition of the term ‘terrorism,' and the consequent questions such as ‘what constitute an act of terrorism’ and ‘who is a terrorist’ have generated a genuine dilemma in this regard. Moreover, with different perceptions of crime, on the one hand, and diverse interests, on the other, states often stand as a barrier to effective and coordinated counter-terrorism measures. Resolution 2322 does not aim to clarify this conceptual quandary. Rather, it debates one of the most significant practical challenges of countering transnational terrorism, the lack of judicial cooperation. This was one of the fundamental problems in prosecuting most terrorism cases in the past, especially in cases where foreign terrorist fighters/groups were involved.
In most of the recent terrorism cases, including cases in Mumbai, Brussels, Paris, Istanbul, Nice, Berlin and so on, significant components of the case, such as evidence, suspects, and witnesses were spread across the jurisdictions of several States. Prosecutors across the globe have referred to this challenge at various occasions. For instance, in March 2015, at a conference on ‘foreign fighters’ organized by UNODC, the participants, mainly prosecutors from various countries, observed that judicial cooperation is the primary challenge when it comes to prosecuting transnational terrorists.1 At another event organized by UN Counterterrorism Committee in March 2016 it was emphasised that cooperation among judges is vital to counter-terrorism efforts. Referring to the 2008 Mumbai attack, a Supreme Court Judge from India suggested the creation of a ‘common court’ for countries in the South Asian region, which would comprise judges from SAARC member States.2
The lack of cooperation amongst police forces, judiciary, and absence of international databases regarding terrorist groups and their members hampered terrorism cases significantly. Firstly, the lack of clear evidence or unfeasibility of collecting evidence from several states, often directed enforcement agencies to wrong targets. In its 2014 report titled “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions,” Human Rights Watch Columbia Law School’s Human Rights Institute, unveiled many such cases.3 Secondly, it resulted in an interesting judicial development that shifted the burden of proof from the prosecution to the accused. The Indian amendments to the UAPA (Unlawful Activities (Prevention) Act in 2008 as a response to the Mumbai attacks are a case in point.4 Consequently, most of the cases were either disproven in the court or led to unending trails.
- Resolution 2322 provides an opportunity to strengthen the multilateral counter-terrorism endeavours in many ways. First, the proposed judicial cooperation would help in mobilizing tangible evidence to ensure that those evidence were gathered in a form which could be used in courts. Second, a systematic use of international databases, for instance, INTERPOL database on wanted persons, as proposed in the resolution, would be helpful in preventing terrorists from entering/travel from the territory of one State to another. This is significant in the light of the imminent threat posed by the return of foreign terrorist fighters from Syria and Iraq. The resolution, if implemented in letter and spirit, would help in getting evidence regarding their actions in Syria and Iraq rather than allegations which could not be proved in a court of law. Moreover, active legal cooperation at the international level, as envisaged by resolution 2322 would open ways to end the stalemate in extradition of wanted terrorists, and would put an end to the practice of providing safe havens to such persons by other States. Since the resolution has been initiated under Chapter VII of the UN Charter, constructive efforts are expected from member States to enhance international judicial cooperation in their fight against terrorism.
In short, the Security Council resolution on international judicial cooperation is a significant development in countering the scourge of terrorism, particularly by transnational terrorist groups. It can be viewed as the first step to overcome the practical challenges associated with the prosecution of terrorists in their country of origin or elsewhere, for their criminal activities in a foreign country. As the resolution says, the entire world is facing ‘a unique threat.’ Hence it seems logical that the response should also be at global level. However, to make it work, it is necessary to cover the gap between adoption and implementation of the resolution, by both the UN and its member States.
Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.