The past years have shown a clear shift in counter-terrorism operations: rather than a “capture or kill” attitude, counter-terrorism activities are increasingly moving towards law enforcement operations with a focus on criminal prosecutions. Nevertheless, the military remains an important actor in such operations and has become crucial in securing and gathering evidence either in or away from conflict zones, to be used to prosecute alleged terrorists.
In such cases issues arise with respect to both the military’s involvement in the first place, as well as its interaction with other government institutions such as prosecutorial agencies and the judiciary, in the chain of events that will ideally lead to bringing those to justice who are involved in the commission of terrorist acts within a framework that is fully respectful of human rights and the rule of law. Typical scenarios for evidence collected by the military are those where armed forces – both national and multi-national ones – are engaged in operations which yield intelligence that is subsequently needed to prosecute individuals suspected of involvement in terrorism. In some instances, military personnel is engaged in counter-terrorism operations even without the existence of a state of armed conflict, meaning that suspects may be first taken into custody by soldiers or material evidence be collected by the military. Overall, the reliance on evidence collected by the military poses new and unique challenges for prosecutors and other officials who are tasked with bringing terrorists to justice.
In order to raise awareness of the related legal challenges and dilemmas, as well as to identify relevant good practices, ICCT in close cooperation with the United Nations Counter-Terrorism Executive Directorate (CTED) has been conducting the project Challenges Raised by the Use of Evidence Collected by the Military in Terrorism-related Cases Prosecuted before Civilian Jurisdictions. The project is generously funded by the Netherlands Ministry of Foreign Affairs and carried out by Dr. Bibi van Ginkel in close cooperation with Dr. Christophe Paulussen and Eva Entenmann.
Presentation at International Law Weekend (24-26 October 2013, New York City)
Project lead Dr. Bibi van Ginkel participated in the International Law Weekend presented by the US Branch of the International Law Association & the International Law Students Association. Dr. van Ginkel presented on the topic of the project.
The programme of the event is available here.
High-Level Symposium on Military Evidence (10-11 July 2014, The Hague)
ICCT convened a closed expert symposium on the topic in The Hague in July 2014. The two-day event was organised in close cooperation with the United Nations Counter-Terrorism Executive Directorate (CTED) and brought over 50 experts from a range of fields and background together to discuss challenges and opprtunities related to the topic of military evidence.
The agenda of the symposium is available here.
Expert Panel on Military Evidence (29 August 2014, The Hague)
During a public event in August 2014, ICCT brought together a panel of experts to discuss some of the scenarios and challenges faced by the military, prosecutors and judges in gathering and using evidence collected on the battlefield. In their discussions, Mr. Bas van Hoek LL.M. (Centre of Military Criminal Law, Public Prosecution Service District Office East Netherlands), Col. Joop Voetelink (Netherlands Defence Academy), Dr. Bibi van Ginkel (ICCT) and Dr. David Scharia (UN Counter-Terrorism Executive Directorate) considered issues such as practical challenges, the admissibility of evidence, the protection of due process and human rights, as well as national precedents and experiences from tribunals such as the International Criminal Court.
Presentation at Conference for Signing Ceremony of Additional Protocol of Council of Europe Convention on Prevention of Terrorism (22 October 2015, Riga, Latvia)
Project lead Dr. Bibi van Ginkel presented as a panellist at a conference for the signing ceremony of the additional protocol of the Council of Europe Convention on Prevention of Terrorism in Riga, Latvia. She addressed the various challenges that exist in situations where the military plays a role in the collection of evidence and arrest of terrorism-related suspects and highlighted the insights that flowed from the project.
Read Bibi van Ginkel’s full presentation.
Download the Research Paper “The Role of the Military in Securing Suspects and Evidence in the Prosecution of Terrorism Cases before Civilian Courts”.
For more information on this project, please contact Project Lead Dr. Bibi van Ginkel.
- The Role of the Military in Securing Suspects and Evidence in the Prosecution of Terrorism Cases before Civilian Courts: Legal and Practical Challenges
- Prosecuting Foreign Terrorist Fighters: What Role for the Military?