Panel Discussion Report Event: Counter-Terrorism: International Initiatives, Perspectives & Challenges Sadiah Waziri and Nina Levarska London Centre of International Law Practice (LCILP) Other Publications, 002/2015 Date: 27/01/2015 This paper is downloadable at: http://www.lcilp.org/other-publications/ Sadiah Waziri and Nina Levarska. All LCILP publications are for non-commercial research use only. Distribution of publications from our website for material interest, profit-making and or commercial gain is strictly forbidden.
Counter-Terrorism: International Initiatives, Perspectives & Challenges Sadiah Waziri 1 and Nina Levarska 2 Brief Intro to Event On Tuesday November 25 th 2014, the London Centre of International Law Practice (LCILP), in collaboration with the London Academy of Diplomacy (LAD) hosted an event on Counter-Terrorism: International Initiatives, Perspectives and Challenges. The event venue was held at the LAD building, located in East London. The panel discussions were separated into three distinct but interrelated sessions: International Counter- Terrorism initiatives; Countering the Financing of Terrorism & Cyber Terrorism, and Combating Violent Extremism & Foreign Fighters. The diverse panel of experts invited to take part in the discussion included: representatives from international law firms, academia, NGOs and legal associations. 1 st Session The first session began with an introduction provided by the moderator, Arvinder Sambei (Joint Head- International Human Rights & Criminal Justice at LCILP & Director at Sambei Polaine), followed by the first speaker of the panel, Professor Charles Chatterjee (Co-Director of London Academy of Diplomacy & Professor of International Law), who discussed the role of the United Nations (UN) in connection to counter-terrorism measures. Chatterjee identified the different functions various UN organs undertake, describing the UN General Assembly (GA) as a platform for discussions, as opposed to the role of the UN Security Council (SC), and resolutions that are passed under it, which are binding. The UNSC Chatterjee identified, had a specific function and responsibility of pursuing humanitarian aid relief after a given conflict. 1 Sadiah Waziri is Research Coordinator-International Land and Maritime Boundaries at the London Centre of International Law Practice (LCILP). 2 Nina Levarska is Research Coordinator-International Human Rights and Criminal Justice at the London Centre of International Law Practice (LCILP). 2
He further advised the audience that in the case of counter-terrorism, the international community should use effective organ diplomats instead of going to the UNSC. He also explained that UNSC resolutions are weakened because of the lack of enforceability in the international legal sphere. Moreover, he also brought to attention the inefficient role of member states when UN resolutions are passed; pointing out that the UK unlike other states, immediately adopted resolutions into its own legislation, while other countries in his view- did not take enforcement as seriously. Professor Chatterjee advocated for a soft law approach to establishing solutions within the UN, emphasizing that if the law is coercive then there will inevitably be deviations from it. Chatterjee provided the example of exercising sanctions, which he believed to be ineffective. Soft law, Chatterjee insisted however, can be illustrated in the example of targeting the unjust apartheid system in South Africa, which stood clear as a moral sanction rather than a violent sanction that impedes growth and destabilizes the targeted country. He concluded his remarks by suggesting that instead of looking for aid, states should develop means by which they would protect themselves. For instance, UK adopted legislation for both counter-terrorism and anti-money laundering (AML). In regards to AML specifically, Chatterjee asserted that it was essential to build state capacity in order to detect illegal activities. Moreover, he highlighted that the role of action groups at grassroots level were crucially important. The second speaker for the first session was Tim Daniel, who introduced himself as a solicitor for asset tracing cases, mainly those involving proceeds of corruption. He posed a question to the audience about how the recoveries in the Far East were relevant to counter-terrorism measures, and went on to explain why. In the post 911 era Daniel stated, the United States was eager to trace the funding of those it deemed terrorists. Although, prior to 911, the UN Convention against funding of Terrorists was in place in 1999, only 4 countries (including the UK) were signed up at the time. There are up to 179 countries signed up to the convention in the post 911 period, including several UN resolutions that have been passed since then, mainly UNSC 1373 and 1257. The rest of his speech was tailored to explaining the traditional means in which terrorism is financed, pointing out charities, businesses, the smuggling of blood diamonds and timber as a few examples. Daniel spent the rest of his speech outlining the ideology of the fundamentalist group and their strategies in the region. Daniel pointed out that ISIS had a body aspiring to create a caliphate with 8 million people under its rank- though it is worth mentioning that given the incessant media attention and popularity that ISIS has gained over the past few months, pinpointing the exact number of followers has not been verified in a consistent 3
fashion by various information sources and outlets. Therefore, numbers are speculative figures at most at this point. He also outlined a few significant developments that helped strengthen ISIS financially, pointing out that the biggest case sources for ISIS was oil wells (which Daniel stated created 60% of Syria s production capacity); millions of dollars more have been gained through donations (multiple charities in the UK); $1.5 million gained through bank robberies; looting and smuggling of archaeological sites, and ransoms from kidnappings- which made up about 20% of their possible funding. Tim Daniel did point out that the disruption of oil tankers could be an important development in efforts to dismantle terrorist financing. The challenges faced in addressing these issues are extremely daunting given the perplexity of the subject. Daniel identified that one is left reliant on law enforcement agencies in the affected countries to trace and freeze funds by turning off the tap, and criticized the UN for not being the best alternative to solve the dilemma. Daniel also mentioned that the idea of setting up a supra national body to trace assets and organise recovery has been suggested in the past. From Tim Daniels personal experience in dealing with asset recovery cases, he stated that often times, the political will to pursue funds wilts as politicians who come into power realise they rely upon corruption to receive and uphold their political authority. Arvinder Sambei concluded the session by identifying that both Charles Chatterjee and Tim Daniel advocated that the Security Council was not fit for countering financing of terrorism and therefore, it was crucial for states to enforce the UNSC resolutions through training and expertise. Arvinder then opened up the floor to the audience to begin the q & a for the session. 1 st Session Q&A The first member of the audience to share their comments insisted that the Security Council was a farce, and stated that many assets the SC freeze are not substantial in nature. Professor Chatterjee advised that such issues should not be referred to the Security Council, because they have failed and exceeded their remit. He suggested solving these issues through General Assembly instead, because since 1962, the Security Council has produced a zero success rate. Tim Daniel provided an example of tackling terrorism funding by drawing attention to a hotel that was blown up in Mombasa. He came to know that through this incident p that there were no banking controls in place. Only 5 sectors of the banks had AML compliance regulations in place. There were no ramifications to even allow employees to go on courses to learn AML. He also briefly pointed out that in this respect, London is considered to be the money laundering capital of the world, and that lots of UK money is illicit. 4
The second audience member who contributed to the discussion identified themselves as a UN employee, raising the following question: What is the success rate on confiscating money?... Sanctions affect normal people, just not people in power. On the matter of oil and ISIS, the price of oil has been going down, who is buying the oil? Tim Daniel responded by stating that the world record for recovery was General Sani Abacha, who had taken 5 billion dollars, of which 3.5 billion was recovered). Other audience members stated general discussion comments regarding the diverse means of funding for groups such as ISIS, and the possible link between Eastern European countries trading with ISIS. 2 nd Session The second panel discussion was geared towards the topic of financing terrorism, the use of the internet by terrorist organisations and determining responses to cyber terrorist attacks. In the beginning of his presentation, Roger McNally (Course Convenor: MSc Security Studies & Diplomacy, London Academy of Diplomacy) highlighted the advantages of analysing literature compared to political sciences and dry academics for learning about counter-terrorism. He also emphasised the problem associated with definitions in this vague area. In practice, it is not easy to recognise between a terrorist and an insurgent. This he argued was partly due to the lack of material and evidence which is often substituted by explanations and descriptions instead. McNally then began discussing the financing of terrorist groups. He mentioned a specific type of illegal financing often involving carrying money in briefcases by cash couriers. Moreover, Hawala (i.e. an informal value transfer system) is usually used in the cases of terrorist financing. In West Africa he highlighted for example, high value commodities such as diamonds and gold are often utilised for these purposes. The methods used differ depending on the volume, level of detection or convenience. However, simple methods are usually the most effective ones. The next part of his presentation dealt with combating the financing of terrorism. He pointed out several limitations of the criminal justice system: 1) the police usually catch people that work for the important criminal mastermind instead of the leader himself. 2) In the case of terrorism, the deterrent aspect of the criminal justice system is often ineffective because it is irrelevant to suicide bombers and due to the fact that the leaders usually stay free. 3) Guilt is difficult to prove and there is a great risk of acquittal. The terrorists use, in his opinion, trial as a platform for propaganda, and incarceration can 5
trigger further terrorist attacks and hostage taking. 4) Another problem he addressed can be found in connection to measuring actions against terrorism as it is unclear what they should be assessed against. Roger McNally s speech also touched upon the link between terrorism and the Internet. He said that the advantage of using Internet is that the terrorists can determine the content of their messages and therefore, they have the opportunity of selecting the means by which their image is projected into cyberspace. Terrorist groups on the Internet are very well established as the sites use manipulation techniques to influence young people. The websites contain histories of the group and the profiles of the key personalities. They usually emphasise the violence caused by their opponents without mentioning the violence and casualties the group itself is responsible for. The websites are used for communication, recruitment and moral disengagement for their followers. They also include information for their main audience such as target data on their enemies. In addition, these sites also provide a platform for networking, mobilisation and instructions. In addition, groups associated with terrorist activity predominantly publish online manuals, regarding orchestration, coordination and fundraising. The second speaker on the panel, Dr. Irene Couzigou (Lecturer in Law at the University of Aberdeen) gave a presentation on cyber terrorism, and began her presentation by raising the question of whether cyber-terrorism can be considered armed force and whether the law on the use of force can be applied to cyber-terrorism. She clarified that there is no international definition of armed force, as armed can be defined as equipped with a weapon. However, the UN Charter did not refer to any specific weapons. Therefore, she deducted that the definition of armed force is open to broader interpretation. Generally, there are two approaches according to which it could be determined whether a conduct constitutes armed force. Couzigou described two methods of approach in deducing armed force: instrument based approach and consequence based approach. According to the instrument based approach, the force must be physical in order to be considered armed force. For this reason, cyber terrorism would not be regarded as use of force under the instrument based approach. On the other hand, the consequence based approach compares the effect of cyber weapons to the effect to traditional weapons. Using both types of weapons causes similar consequences. This, she explained, was due to the fact that cyber operations such as shutting down power generators of hospitals or airline crashes, indirectly lead to injuries and death. Couzigou highlighted that states tend to adopt the consequence based approach, and that it was usually those states that considered armed force as an appropriate measure in responding to cyber terrorism. 6
Under International Law, armed force can be used in self-defence and/or if it is authorised by the UNSC. After acknowledging that cyber terrorism has disrupted peace and that it has harmed and killed, the UNSC can authorise violent retaliation. On the other hand, if the Security Council is not willing to authorise use of force against cyber terrorism, the right of self-defence can be utilised (under the UN Charter and general international law). According to the Article 51 of the UN Charter, the right to self-defence can be used if an armed attack occurs. Nevertheless, Irene Couzigou also mentioned that it is unclear against whom the right of self-defence should be used. If the cyber attack is carried out by a state, the cyber attack can be attributed to the state and the attacked state can respond in self-defence. The problem is that most cyber attacks are carried out by non-state actors. The invasion of Afghanistan was in her view the only clear case in which the right to self-defence was accepted against a non-state actor. Dr. Couzigou said that there is a right to self-defence against a non-state actor under customary international law. Moreover, she mentioned another question arises as to the legality of retaliation against a state that harbours cyber terrorists. The US used the fact that Afghanistan was harbouring terrorists as a justification for its illegal invasion. For this reason, Irene Couzigou believes that the law needs to evolve in order to recognise that the states have right to retaliate against states harbouring terrorists. She further stated that states should prevent any damage that is caused from its territory to another state. If the state does not apply due diligence to the situation, then the state forfeits its rights to territorial integrity, which triggers the right to invade the state by another state in self-defence. Finally, Dr. Couzigou expressed the opinion that there is also a right of self-defence against the states that endorse cyber terrorism and she said that providing finance and other means of support to terrorists should be considered endorsing terrorism. 2 nd Session Q&A An audience member asked why the perpetrator of the 2011 Norway attacks, Anders Brevic was not charged under the terrorism legislation, and based on the subject at hand, what is the legal definition of terrorism? The same audience member also further posed the question to Dr. Irene Couzigou regarding cyber terrorism by stating: The State of Israel had for the past 5 years attacked the Iranian stock exchange and various infrastructures. Did Iran have a right to retaliate in self defence against the Israeli attack? Irene clarified that the Islamic Republic of Iran had not exercised a formal 7
complaint, nor did they define the attack as an armed attack. However Irene acceded, that had Iran done so, they did in fact have a case for the exercise of self-defence. Roger McNally declared in his view that there was no fluid definition of terrorism. He used the example in Northern Mali and the difficulty in identifying who the rebels were, as some identified the Tuaregs as criminals, while others considered them as freedom fighters, and further still- some insisted they were insurgents. He also stated the irony of the entire situation as a result of Western intervention in Libya in 2011. The final audience member drew attention to the situation in Somalia concerning cyberterrorism, and Irene ended the session by responding that states had a responsibility to prevent damage from its territory to another, and that if a state did not apply due diligence to the situation then it would immediately forfeit its right to territorial integrity. She also recognised that it was difficult to be proportionate in circumstances in which armed attacks occur. 3 rd Session Martin Polaine (Joint Head- International Human Rights & Criminal Justice at LCILP & Director Sambei Polaine) was the moderator for the final session. He introduced speakers: Roger Smart (Barrister-at-law, QEB Hollis Whiteman), Eelco Kessels (Senior Analyst, Global Center on Cooperative Security, UK) and Sabah Al Mukhtar (Chairman of the Arab Lawyers Association). Roger Smart began the discussion with addressing the issues relating to the foreign terrorist fighters (FTFs); international obligations, and the UK structure, both in the present and for the future. He highlighted the UN counter terrorism protocols that listed a range of offences that address the conduct of FTFs in the event of prosecution. The UN resolutions were supported by the Global Counter Terrorism Forum (GCTF) and UNSCR, such as those associated with condemnation, freezing of assets and the sanctions regime. Roger Smart then focused on prevention and the UK long-term strategy, known as Contest which was established in 2003 to reduce the risk of terrorism. He explained the basic four limbs approach: pursue (to stop acts); prevent (prevent individuals from becoming extreme); protect (security against terrorist attacks) and mitigation (the effects of attacks). The final limb he explained was associated with the establishment of special investigators and prosecutors, who have diverse sources of evidential material, including access to various databases, and should thus, take part in training exercises. Roger also touched based on capacity building and the need for trust to be a foundation for agencies within the nation state. He admitted that there was a challenge associated with making 8
the system more cohesive. He insisted on the need for dedicated judges in terrorism related prosecutions. 002/2015 Whilst Roger focused on the measures needed to thwart terrorist activity and indeed locate them, Eelco Kessels presentation looked at the soft power approach to resolving issues related to terrorism threats. Kessels mainly focused on the importance and role of community and nongovernmental engagement. He believed prevention was far more effective than mitigation, by locating the root causes, i.e what drives an individual to become an FTF. He pointed out that at the GCTF, UN resolutions for example, highlighted the importance of preventing terror through community engagement, and identifying push factors (e.g. denial of rights/perceived marginalization/economic deficiency/repression/lack of justice/racial discrimination, etc). Moreover, the resolutions pointed towards a possible interconnection between these factors that can lead towards influencing an individual to become an FTF. Kessel also further provided other pull factors, which include: social networks as a weapon to spread propaganda to address various (albeit legitimate though perhaps at times not justified) grievances which made the cause appealing to youth (adventurous, various leadership opportunities) and incentives (social, economic, career oriented etc). Kessels insisted the need to identify and counter these various pull factors in an appropriate manner. He also emphasised the need to avoid generalisations and that each case be treated separately, as there are different push and pull factors that contribute to the overall aims of an individual, due in part to their previous circumstances and situations. He also touched based on the responsibility not to alienate communities, but rather engage in a manner where communities feel they are genuine partners. Education was also emphasized as a solution to CT initiatives within communities, ensuring that youth are not alienated or otherwise feel entrapped. Kessels concluded his contribution by pointing out that there needs to be a combination of both soft and hard power approaches, including training judges to better handle FTF cases. The final speaker of the night, who provided concluding remarks to the panel discussion event was Chairman of the Arab Lawyers Association, UK, Mr. Sabah Al Mukthar. He stated that the abuse of an individual leads to a negative reaction, and that when a person perceives that they are being unfairly treated and that there are no means of redress at their service, they react unreasonably. He also outlined the tragedy of Iraqi lives due to the illegal invasion of Iraq and it was a matter of principle that no state should have the right to dictate to another state their foreign policy. Sabah Al Mukhtar highlighted that there was a growing need to understand the enemy and that the popularity of the internet was based on the fact that people become more 9
aware of injustices through it, i.e. the recent Israeli incursion in Gaza, and watching videos tailored to explaining the motivations behind Muslims going to fight in Syria. He also discussed the problem and impact of western media exaggeration in connection to a recent news piece on the impact of ISIS and the Mosul dam. He ended his presentation by addressing Western perceptions that are currently deciding who constitutes a terrorist and who does not, and that it is imperative to address double-standards, and that the Iraqi and Syrian people deserve to feel security knowing that there is and should be an alternative to ISIS and Western bombing of the region in retaliation to the expansionist objectives of ISIS in the region. 3 rd Session Q&A The final q&a session addressed issues relating to individuals going overseas to fight, and the factors which are possibly considered in deciding who constituted an FTF. Roger Smart responded by insisting that FTFs fall within remit of terrorist activity and that the public interest is also considering the extent to which an individual is allowed to fight in foreign campaigns. Another audience member, a representative from a Middle Eastern embassy, commented on grievances and push factors, such as the American drone strikes that target few individuals considered terrorists, whilst predominantly murdering innocent civilians (men, women and children). Sabah explained that the situation in Yemen and Pakistan was complex and tragic and that the US was indeed in breach of international law. A final audience member addressed the problem of state sanctioned terrorism, with Sabah highlighting terrorist activities by world powers who do not call each other, thus highlighting the hypocrisy and irony of the entire topic. Eelco Kessels also suggested that drone strikes and other related activities further grievances and need to be addressed. This could be achieved by the development of new policies, which are not currently in place. 10