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17 May 2024 | Alumni

Steven Hill’s Remarks during the International Conference on Investigation and Prosecution of Terrorist Offences in Armed Conflict

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International Conference on the Investigation and Prosecution of Terrorist Offences 

Committed in the Context of Armed Conflict

Council of Europe

Strasbourg | 15 May 2024

Remarks by

Steven Hill

Executive Secretary

International Institute for Justice and the Rule of Law

  • Thank the Conference’s organizers — the Council of Europe Committee on Counter-terrorism (CDCT) — and the panel’s moderator, Ambassador Päivi Kairamo from Finland’s Ministry of Foreign Affairs.
  • In my presentation —
    • (1) I will start by providing a broad overview of the IIJ’s work, including some of our initiatives relevant to the theme of this Conference: accountability for terrorism and other serious crimes linked to armed conflict.
    • (2) Then I’ll focus in more detail on an IIJ line of effort of particular relevance to this panel: our Battlefield Evidence initiative.
    • (3) Next I’ll note a few important issues and practical lessons related to Battlefield Evidence, based on what have we seen in practice working with countries across Europe, Africa, the Middle East, Southeast Asia, and elsewhere.
    • (4) Finally, I’ll briefly preview the upcoming Comparative Practices on the Use of Information Collected in Conflict Zones as Evidence in Criminal Proceedings, which the IIJ and CDCT Secretariat have developed and will publish jointly this fall.

(1) Introduce the IIJ and the relevance of our work to this International Conference.

  • For those not already familiar with our work, the IIJ is a nonpolitical multinational institution based in Malta and primarily focused on counter-terrorism, providing rule of law–based training to criminal justice sector stakeholders, including lawmakers, law enforcement officials, prosecutors, judges, and others.
  • We have an international board (as well as staff), and we appreciate the support of many of the governments represented here: 8 of our board members are member states or observers of the CDCT (France, Germany, Italy, Malta, Türkiye, the UK, the EU, and the US) and several other CDCT members are donors (Canada, Denmark, the Netherlands, Switzerland, and Spain).
  • We strengthen criminal justice systems and build transnational networks to promote justice, security, and human rights, through a range of activities —
    • Developing capacity-building programs on issues related to the fight against terrorism;
    • Producing foundational documents, based on practitioners’ and subject matter specialists’ expertise, on issues relevant to counter-terrorism including mutual legal assistance and juvenile justice; and
    • Providing a neutral convening platform for practitioners to share information about sensitive criminal justice issues they confront in their work.
  • This conference’s theme, at the broadest level, is bringing the perpetrators of terrorism and other serious crimes to justice, and the IIJ advances that mission through several ongoing lines of effort —
    • For example, through our initiative on Addressing the Impunity of Sexual Violence in the Context of Terrorism, we convene frontline criminal justice practitioners to help them better understand unique challenges associated with investigating and prosecuting crimes of sexual violence in the context of terrorism — which in many cases, given a nexus to an armed conflict, may also amount to international crimes. We have focused on accountability for the crimes of ISIS, Al Shabaab, and Boko Haram in this initiative, and work closely with UNODC, the Dennis Mukwege Foundation, the Special Criminal Court in the Central African Republic, and a range of other key actors. This is a topic I know that this conference will be focusing on in more detail tomorrow.
    • Through the IIJ Global Central Authorities Initiative, we support the crucial role of Central Authorities, the national entities responsible for mutual legal assistance and extradition. In 2022 we convened the Great Lakes Regional Ministerial Conference on Enhancing Judicial Cooperation in the Democratic Republic of Congo, at which 12 ministerial delegations adopted the Kinshasa Declaration, a set of model guidelines to improve cross-border exchange of information in criminal cases. This kind of proactive information sharing is essential to terrorism cases linked to armed conflicts, which often involve transnational investigations.

(2) Today, I’ll focus on one of our most important longstanding lines of effort: our initiative on Battlefield Evidence.

  • Without reiterating the description of Battlefield Evidence itself which the moderator and the other speakers have already offered, I’d echo their words about the value of this material for criminal justice purposes, including for terrorism-related investigations and prosecutions, particularly (for evident reasons) those linked to armed conflicts.
  • The IIJ began work on this issue in early 2019 with a Global Workshop, at which the United States interagency Non-Binding Guiding Principles on Use of Battlefield Evidence in Civilian Criminal Proceedings were first presented to the international community.
  • Later that year, we convened more than 100 representatives of over 30 countries and another dozen international institutions at a Senior Leaders Seminar, where CTED announced the publication of the UN’s own Military Evidence Guidelines.
  • Since then, we have worked to enhance frontline counterterrorism practitioners’ appreciation for the value of Battlefield Evidence and to promote implementation of international guidance on its collection, exploitation, sharing, and use to support civilian criminal justice outcomes.
  • Initially, the IIJ’s principal focus was promoting the use of Battlefield Evidence to investigate and prosecute crimes ISIS carried out in Iraq and Syria, particularly to bring returning or relocated foreign terrorist fighters (FTFs) to justice.
  • We have since expanded the scope of our work on Battlefield Evidence, while tailoring it to different contexts. We are now planning both regional Dialogues, scoping how countries within a certain geography handle the range of issues related to Battlefield Evidence, and thematically focused Dialogues, delving into how particular issues are handled across a range of geographies. For example, we’ve convened a meeting to evaluate the most effective transnational mechanisms for sharing information collected in other contexts for European states’ border security operations as well as civilian prosecutions.
  • Finally, over the past year we have partnered with the Council of Europe Committee on Counter-Terrorism to produce a publication for the Council of Europe on the use of information collected in conflict zones as evidence in criminal proceedings (which I will say a bit more about later).

(3) Based on all this work on Battlefield Evidence, I want to note a few important practical lessons.

  • First, there are a number of “soft law” guidance documents which can be instructive.
    • The United States government developed a set of fourteen Non-Binding Guiding Principles on how to deal with different challenges posed by battlefield evidence, which (as Larry just described) cover legal frameworks for collection and receipt, storage and cataloguing, exploitation and analysis, sharing information with domestic and foreign partners, and training criminal justice stakeholders to raise their awareness of the issues involved).
    • The United Nations has issued its own set of Military Evidence Guidelines, which are broader than the U.S. Non-Binding Guiding Principles in that they address not just “real” or physical evidence like documents and weapons but also statements and testimony.
    • Eurojust has also published a Memorandum on Battlefield Evidence, focused on use in court, which is an excellent document, and particularly useful since it’s based on surveying states with both civil and common law systems.
    • The Global Counterterrorism Forum has also contributed (which is of particular interest to the IIJ, as we are an institution originally inspired by the GCTF) by publishing the Abuja Recommendations on the Collection, Use and Sharing of Evidence for Purposes of Criminal Prosecution of Terrorist Suspects: this documents deals with battlefield evidence, in addition to digital evidence more generally and testimonial evidence.
    • Finally, as you’ve heard, the Council of Europe Committee of Ministers in 2022 adopted a Recommendation to member States on this issue.
  • Second, there are a number of major capacity gaps in how states collect, preserve, analyze, and exploit material from the battlefield.
    • There is still a lack of processes to maintain chains of custody and to document the integrity of material and information.
    • There is a lack of resources for cataloguing, or sometimes translating, the vast volume of information and material collected, or for analyzing it for potential evidentiary value.
    • And there is often a lack of expertise for fully exploiting electronic evidence that may have been picked up.
  • Third, there are persistent issues related to use in court.
    • There is a systemic bias toward overclassification, and de-classification is challenging. This makes it harder both to share and use information. So it’s particularly noteworthy that in 2020, the U.S. Secretary of Defense directed that thenceforward all newly acquired and unexploited material captured, collected, or handled by U.S. Armed Forces during military operations be presumed to be unclassified, unless sensitive sources, methods, or activities were used to acquire such materials.
    • Next, there is the larger challenge of using classified information in judicial proceedings. This is a complex issue, which involves vindicating the right to a fair trial while at the same time appropriately protecting the security interests involved, including the secrecy of sensitive sources and methods. Ultimately this depends on both the relevant jurisdiction’s procedural arrangements and the details of the case at hand.
    • A closely related challenge is how to introduce sensitive witness testimony. The testimony not just of the information’s collectors but also of more senior officials, technical experts, or others (depending on the case) is particularly valuable as support and corroboration for battlefield evidence. Again, there is a challenge of how to facilitate such testimony with appropriate protections while respecting fair trial rights. A range of measures including the use of physical screens, remote videoconferencing, and the taking of written depositions out of court may be available.
  • As a final overarching point, the principle that must not be forgotten in all of this is that states should ensure that both the sharing and use of Battlefield Evidence pay full respect to international human rights law, including to defendant’s fair trial rights, and to national safeguards.

(4) Comparative Practices

  • Finally, as you’ve heard, the IIJ has partnered with the CDCT Secretariat to develop a set of Comparative Practices on the use of information collected in conflict zones as evidence in criminal proceedings.
  • This document was adopted by the CDCT in its plenary meeting earlier this week. We expect it will be published this fall in a number of languages, and we hope that many of you will join us for the launch event (exact date and location to be announced in due course).
  • For today, I’d like to make a few brief remarks on what the document’s purpose is and what it covers.
  • In terms of scope, it focuses on criminal offences linked to conflict zones, but it addresses the full range of potential sources of information and materials collected there (not just military-collected material). Moreover, it considers the use of information not just in terrorism-related cases but also for the prosecution of serious violations of IHL.
  • Second, the source material of this document is unique. It of course builds on the Council of Europe Recommendation CM/Rec(2022)8 of the Committee of Ministers to member States on the use of information collected in conflict zones as evidence in criminal proceedings related to terrorist offences. And it is rooted in international norms and best practices. But it primarily draws upon both information that states provided in response to a detailed questionnaire the CDCT Secretariat distributed, as well as the first-hand personal and institutional expertise of members of the relevant CDCT Working Group (the CDCT-CZ).
  • Finally, the purpose of this document is to present concrete cases and examples of how information and materials collected in conflict zones has been accessed, shared, and used as evidence. They are not prescriptive, but the examples and guidance they offer is very practical, so we and the CDCT Secretariat hope they will be useful to policymakers and practitioners, and will play a role in advancing justice and accountability for terrorism-related and other offenses linked to conflict zones.

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