A CASE FOR RESTRICTING FAIR TRIAL RIGHTS OF THE OFFENDERS INVOLVED IN INTERNATIONAL TERRORISM AND ORGANISED CRIME

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A CASE FOR RESTRICTING FAIR TRIAL RIGHTS OF THE OFFENDERS INVOLVED IN INTERNATIONAL TERRORISM AND ORGANISED CRIME
ByDR. 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.
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*        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].       BBC News Islamabad (02-06-2009).
[7].       BBC News(02-06-2009) available at http://news.bbc.co.uk/1/hi/world/south_asia/8078356.stm.
[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 athttp://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 athttp://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(POTA) of India http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm[accessed 05/06/11]. See also section 21-H, ATA 1997 Pakistan & Section 32 POTA 2002 India, See section 49 A & 53 (1) (A) POTA 2002 India and Section 19 ATA 1997 of Pakistan.
[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 UNCAC 2003.
[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(POTA) of India http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.htm[accessed 05/06/11]. See also section 21-H ATA 1997 Pakistan & Section 32 POTA 2002 India, See section, 49 A & 53 (1) (A) POTA 2002 India and Section 19 ATA 1997 of Pakistan.
[33].      Ibid.
[34].      Ibid.
[35].      Ibid.
[36].      Ibid.
[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 SCOR, 2001, 4385th Mtg., UN Doc. S/RES/1373 (2001).
[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.
Resource of this case is http://www.pljlawsite.com/2015art6.htm

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