Bringing (Foreign) Terrorist Fighters to Justice in a Post-ISIS Landscape Part III: Collecting Evidence from Conflict Situations

The first op-ed in this trilogy looked at how courts in Syria and Iraq can bring terrorists to justice, whereas the second op-ed looked at the prosecution by foreign national courts. This op-ed will examine how evidence can be collected in a post-ISIL landscape for prosecution purposes.

In order to bring terrorists to justice within a rule of law framework, prosecutors need to have evidence. Prosecutors may face a number of challenges in securing evidence while the fighting in Syria continues and the struggle for political power in Iraq is still taking place. In such cases, it may not be possible to travel to war-torn and conflict-ridden areas within certain countries to collect evidence, there may not be a judicial cooperation agreement in place with the country where the crimes have been committed, or the legitimate government may not have any effective control over the area where the evidence is located. Mindful of the threat posed by returning foreign terrorist fighters (FTFs), efforts to strengthen the prosecution of FTFs and overcoming the difficulties in obtaining evidence from conflict zones should be improved. In recent months several (foreign) terrorist fighters have been convicted by the Central Criminal Court in Baghdad in Iraq, including a notorious Belgian FTF that has been sentenced to death on terrorist charges.

In the scenario that investigators are not able to collect information and evidence from war-torn areas and prosecutors cannot rely on international cooperation, they could explore whether information collected by non-governmental organizations (NGOs) can be used in court. Over the last few years, a number of Syrian NGOs like Syria Justice and Accountability Centre, Syrian Observatory for Human Rights and the Violations Documentation Center in Syria have been documenting human rights violations, which could include terrorism-related crimes. In Iraq the National Institute for Human Rights and Hammurabi Human Rights Organization are documenting human rights violations. The monitoring, documentation and reporting of human rights abuses has significantly changed in recent years.

The number of NGOs documenting human right abuses has increased, more funding is available and modern technology has a huge impact on how human rights violations are being documented. The use of mobile phones and social media platforms has helped to document human rights abuses and has also led to the development of special tools and apps that can help citizens to report human right abuses, so-called ‘citizen journalism’. A good example is Bellingcat, a platform of on-line reporters who use open source and social media to investigate, among other topics, conflicts, human rights violations and political issues. Another interesting development is the so-called civilian-led monitoring model that took place in Iraq from 2014 to 2017 and which was conducted by Minority Rights Group International (MRG) in partnership with the Ceasefire Centre for the Civilian Rights. The aim is to improve the monitoring of human rights abuses by citizens with modern technology, but in such a way that it can be used in both judicial and non-judicial settings to achieve justice.

The main concern is whether information collected by NGOs is credible and admissible as evidence in criminal court proceedings. The prosecutor needs to assure how the evidence has been collected and documented. To ensure that the alleged suspect has a fair trial, the defence – in accordance with the principle of equality of arms – must be able to question the reliability and credibility of the evidence. So far, information collected by NGOs is mainly used to demonstrate historical context or used to support other evidence. However, in the Bemba case before the International Criminal Court, the judges decided that reports by NGOs can be accepted as evidence provided that the reports are relevant to the case, have a probative value and are sufficiently relevant to outweigh any prejudicial effect its admission may cause. This means that information collected by an NGO can be submitted as evidence if it is relevant, if the sources of information and the methodology used are reliable and if it will not have a prejudicial effect to a fair trial. These criteria could also be used by national courts to determine the admissibility of the information collected by NGOs and the weight to be afforded to such evidence.

International Commissions of Inquiry or other mechanisms established by the Security Council can also play a vital role in documenting terrorism-related crimes in post-conflict situations. In Syria several international fact-finding missions are operating with different mandates. There is for example the Fact Finding Mission (FFM) for Syria, which is set up by the OPCW in 2014 to establish the facts surrounding allegations of the use of toxic chemicals as weapons in Syria. The FFM formed the basis for the work of the OPCW-UN Joint Investigative Mechanism (JIM), an independent mechanism established by UN Security Council Resolution 2235(2015) and tasked to identify perpetrators and attribute responsibility. Unfortunately, the mandate of the JIM has not been extended, but the FFM is still operational and most recently investigated the alleged use of chlorine in the city of Douma.

Another operational international mechanism is the International Independent Commission of Inquiry (CoI), - established by the Human Rights Council of the UN - which is tasked with investigating all alleged violations of international human rights law in Syria since March 2011. The CoI is  also tasked with trying to identify those responsible for violations with the aim of holding the perpetrators accountable. Finally, the International, Impartial and Independent Mechanism (IIIM) to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes in Syria could also play an important role in bringing terrorist to justice. This mechanism, created by UN General Assembly Resolution 71/248 (2016) in response to the failed referral to the ICC of the Security Council, is tasked to collect - primarily by building on the information collected by others – preserve, consolidate and analyse evidence. The IIM will store evidence and facilitate fair and independent criminal proceedings in national, regional or international courts or tribunals. Where the CoI focuses on establishing the facts and circumstances of violations, the IIIM’s focus is on linking the evidence to the persons responsible and establishing criminal liability, including command responsibility. In its first report the IIIM recognises the limitations of its mandate, but at the same time sees opportunities to forge new approaches to international criminal justice. The IIM has adopted a victim-centred approach and will engage and closely coordinate its work with victim communities, civil society organizations, international fact-finding missions and national jurisdictions.

In Iraq, United Nations Assistance Mission for Iraq (UNAMI) has been documenting human rights violations as well. The Human Rights Office of UNAMI, in cooperation with the Office of the United Nations High Commissioner for Human Rights (OHCHR), issues reports on the human rights situation in Iraq. Its recommendations urge the Iraqi government to effectively investigate any human rights violations within a rule of law framework and ensure the perpetrators are brought to justice.

On 21 September 2017 the UN Security Council adopted Resolution 2379 (2017), establishing an Investigative Team (IT) to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq. Sadly, the IT only has a mandate to investigate crimes committed by ISIL and not all the parties involved in the conflict. According to the terms of reference, the IT shall collect evidence to the highest possible standards in order to ensure their broadest possible usability and admissibility in fair and independent criminal proceedings, consistent with applicable international law, by Iraqi courts and other states. In recent months several news agencies reported that a huge number of ISIL fighters have been sentenced (to death) in trials that barely last 15 minutes.  These criminal proceedings most likely do not uphold the right to a fair trial and are arguably flawed, which is all the more grave considering that Iraq upholds the death penalty. Most of the terrorist suspects are charged with membership of a terrorist organization, without making a distinction of the gravity of the actual crimes that they have committed. One of the challenges is how the IT can work towards accountability and uphold the rule of law when it cannot ascertain that the evidence they have collected will be used in human rights compliant manner by Iraqi courts. The evidence collected might, however, also be used in other national jurisdictions.

Within the EU, the Genocide Network assists the prosecution services of the member states to effectively prosecute international crimes, for instance by sharing information on investigations related to international crimes, facilitating law enforcement and judicial cooperation and exchanging best practices. This has helped European prosecutors to expand their expertise and strengthen the prosecution of international crimes, including some that have been committed in Syria and Iraq. The members of the Genocide Network are exploring how to improve information sharing and cooperation with NGOs and international mechanism such as the CoI and IIIM considering the vital role they play in documenting human rights abuses.

Although prosecutors cannot always rely on international cooperation to obtain information and evidence from conflict zones, a lot of relevant information can be obtained from the battlefield. Examples are intelligence information, forensic data such as fingerprints on IEDs retrieved on the battlefield and documents on membership of terrorist organizations. These kinds of information can provide insights on how terrorist networks operate, and the kind of crimes that have been committed.

Because of their presence on the battlefield, the military could therefore facilitate in the collection of relevant information that can be used as evidence in court in terrorism-related crimes. This could be the national army, a foreign army or UN peacekeeping operations, provided that in the latter two cases, there is an international mandate (such as consent or UN authorisation) that allows the intervention on the territory of the state where the crimes have been committed. The legal and practical constraints, the intensity of the conflict and operational goals of the military will determine to a large extent in how far the military can assist in collecting information and evidence from (post) conflict situations.

The specific mandate will determine whether foreign or international troops can collect evidence or make arrests. In Mali, MINUSMA is mandated, under Chapter VII of the UN Charter, to use all necessary means to carry out its mandate, within its capabilities and its areas of deployment, including providing assistance to the Malian authorities in their efforts to bring to justice those responsible for serious violations of human rights or of international humanitarian law. The G5 Sahel states, recognized by UN Security Council Resolution 2359 (2017), are also mandated to arrest and detain terrorist suspects and in fact, recently apprehended four terrorist suspects in Mali.

Furthermore, prosecutors need to make sure that the information collected by the military is admissible as evidence in court and that the right to a fair trial is respected.

This challenge has been acknowledged in the Madrid Guiding Principles (S/2015/939, 23 December 2015), and mentioned in UN Security Council Resolution 2396 (2017). Also, the 6th Report of the Secretary-General on the threat posed by ISIL (Da’esh) (S/2018/80 of 31 January 2018) highlighted that only a few States are able to collect evidence in conflict zones, and that the efforts to collect evidence in conflict zones need to be strengthened. Several international initiatives are currently being developed to support the role of the military, provide guidance and clarify the mandate that would be needed, as well as the modalities that can be used, including in cooperation with ICCT.

In the case against the Liberation Tigers of Tamil Eelam (LLTE) in the Netherlands, the court considered that that certain documents – such as membership cards of the LTTE – could be admissible as evidence even though it was not entirely clear under which circumstances the Sri Lankan army had obtained these documents. The Court ruled that the fact that the credibility of the documents could not be ascertained does not immediately result in excluding the documents as evidence, but that these circumstances should be taken into account in how much weight should be given to the documents. In the United States, two Iraqi men were convicted for terrorist activities. Their fingerprints were found on an unexploded IED found in Iraq which could be traced back to one of the terrorist suspects. A similar case led to the successful prosecution of a terrorist in the United Kingdom. These cases illustrate how information collected from the battlefield can in fact be used as evidence court.

To ensure that terrorists are brought to justice within a rule of law framework, it is important that they are tried for the underlying crimes they have committed. In order to do so, it is vital that all relevant information and evidence - including from (post) conflict situations - is carefully documented and obtained to ensure it can be used as evidence in the prosecution of terrorist suspects. In those exceptional circumstances that do not allow investigators and prosecutors to collect evidence from battlefields or from (post) conflict situations, or to rely on international cooperation, other actors can facilitate in collecting relevant information and evidence. This does not only apply in context of Syria and Iraq, but could also be relevant in prosecutions of terrorism-related crimes in the Sahel region, horn of Africa or in other conflict situations. As indicated before, vital information can be obtained from the battlefield to build a case against terrorist suspects. To conclude, prosecutors should consider how information gathered by the military, international mechanisms established by the Security Council and NGOs could be used as evidence in court, while fully respecting international human rights law.