Meeting Report: The Military, Evidence and Counter-Terrorism

On 29 August 2014, the International Centre for Counter-Terrorism (ICCT) in cooperation with the T.M.C. Asser Instituut convened a high-level panel on the use of evidence collected by military for use in terrorism-related cases in civilian courts. Panellists included Dr. Bibi van Ginkel, Senior Research Fellow at the Netherlands Institute of International Relations ‘Clingendael’ and ICCT Research Fellow; Dr. David Scharia, Senior Legal Officer and the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council Counter Terrorism Committee Executive Directorate (CTED); Col. Dr. Joop Voetelink, former Chief of Staff of the NATO Rule of Law Field Support Mission/Rule of Law Field Force Afghanistan; and Mr. Bas van Hoek, head of the Centre of Military Criminal Law, Public Prosecution Service District Office East Netherlands. The panel was chaired by Dr. Christophe Paulussen, senior researcher at the T.M.C. Asser Instituut and ICCT Research Fellow.

United Nations Security Council Resolution 1373 (2001) requires all Member States to bring terrorists to justice; however, many countries around the world are in real need for guidance and practical solutions as they face major challenges in their efforts to implement the resolution. The panellists acknowledged that there is a long list of challenges faced in the process of bringing terrorists to justice. One of the challenges that more recently has become relevant involves using, within the context of civilian courts, evidence which was seized by the military on or away from conflict zones. As undesirable as this maybe in some countries the military fulfils a role in counter-terrorism activities. The question is how member states could rely on evidence collected by the military to be used in civilian courts while respecting human rights and the rule of law. Dr. Van Ginkel noted that the collection of evidence by the military is not a new phenomenon as we have experiences with comparable situations although in different areas. For instance, we can draw on experiences with counter-piracy operations during which marines can collect evidence and apprehend piracy suspects on the high seas under their international legal mandate. Moreover, we can also utilise experiences the international criminal tribunals have in working with evidence collected by the military.

There are many different situations in which the military might find itself in a position to collect evidence or to make an arrest for the purpose of bringing terrorists to justice, for example when they are first responders after a terrorist attack. In order to ensure that the military acts as effectively as possible, Dr. Van Ginkel pointed out that it is important to take stock of both practical and legal challenges when dealing with the military making arrests or collecting evidence.

One challenge addressed by the panel was the cooperation between the actors involved in the process of bringing terrorists to justice by using military evidence. The panellists agreed that the military is generally capable of collecting evidence provided that it works closely and maintain a good working relationships with the prosecution. Col. Dr. Voetelink held that the military is willing and prepared to work together with prosecution services and to take instructions from them as both branches share the same interests. Mr. Van Hoek added that both the military and the prosecution service must be involved in the planning of evidence-based operations, and in particular highlighted the importance of short and direct lines of communication between the prosecution service and the military commanding officer. The military and the prosecution service increasingly communicate with each other during operations, but it is nevertheless important that prosecutors can be on site as soon as possible and take the lead in securing evidence when required.

In this regard, another challenge discussed by the panel is the issue of securing evidence. The panellists acknowledged that the most effective investigations on the battlefield are conducted by civilian criminal investigators since they are best trained to, for example, conduct forensic investigations or to record evidence; the military’s first concern generally is to secure the location rather than collect evidence. As highlighted by Dr. Scharia, past experience has shown that military personnel often lacked evidence recovering techniques and the capabilities needed to secure the chain of evidence. Therefore, it is crucial that whoever collects evidence in conflict zones is well-trained in the proper collection evidence on the battlefield in order to ensure that evidence is obtained legally for use in terrorism cases before civilian courts. Mr. Van Hoek noted that it is important that soldiers are familiar with the golden rules of collecting evidence and that they should at least have basic skills to secure the chain of evidence.

The panel concluded that evidence gathering on the battlefield by the military for the purpose of bringing terrorists to justice confronts prosecuting authorities with many challenges on how to ensure that military evidence can be used in terrorism cases before civilian courts. Although it is difficult for the military to switch from intelligence-based operations to law enforcement operations since they are trained to fight and not to collect evidence, the panel was convinced that the concept of evidence-based operations as part of the more encompassing rule of law concept, is viable. However, the concept requires new tactics, techniques and practices, as well as an enormous and continuing commitment of the military, law enforcement agencies and host state officials to work together. Moreover, as Dr. Scharia recalled, rule of law and human rights based solutions must be provided and implemented in bringing terrorist to justice to ensure that their legal rights are guaranteed at all times.

This event was part of an initiative by ICCT entitled Challenges Raised by the Use of Evidence Collected by the Military in Terrorism-related Cases Prosecuted before Civilian Jurisdictions. This project is generously funded by the Netherlands Ministry of Foreign Affairs and conducted in close cooperation with the United Nations Counter-Terrorism Executive Directorate (CTED). More information about this initiative project will be available in the Projects section of our website shortly.

Panellists

Col. Joop Voetelink served as Guided Missile Officer and HR officer in the Royal Netherlands Air Force after graduation from the Royal Military Academy (KMA) in 1984. After completing his legal studies in 1997 at the University of Tilburg Col Voetelink served as legal officer in the Staff of the Commander in Chief and later as lecturer at the Netherlands Defence Academy (NLDA). In 2013 he deployed to Afghanistan where he served as Chief of Staff of the NATO Rule of Law Field Support Mission/Rule of Law Field Force Afghanistan until the end of that mission on 30 September 2013. Col. Voetelink achieved his PhD title on a thesis on the legal status of military forces stationed abroad in September 2012.

Bas van Hoek LL.M. is head of the Centre of Military Criminal Law at the District Prosecutor’s Office East Netherlands. Previously he was a legal advisor to the Royal Netherlands Army (1998 – 2007); and was deployed in Bosnia-Herzegovina (2002), Uruzgan (2006 – 07) and Kunduz (2011). He has also acted as adjunct assistant professor in Military and Disciplinary Law at the University of Amsterdam.

Dr. David Scharia is a Senior Legal Officer and the Coordinator of the Legal and Criminal Justice Group at the United Nations Security Council Counter Terrorism Committee Executive Directorate (CTED). The Legal and Criminal Justice Group provides legal advice to the Security Council’s Counter Terrorism Committee (CTC) on States’ implementation of relevant Security Council resolutions on countering terrorism and plays a dominant role in facilitating counterterrorism capacity building of States. During 2011-2012 Dr. Scharia was invited by Columbia Law School to become a National Security Law Scholar in Residence. Dr. Scharia is a frequent writer and lecturer on these issues in international forums and holds an L.L.B., L.L.M (Magna Cum Laude) and a PhD from Tel Aviv University.

Dr. Bibi van Ginkel is a senior research fellow at Clingendael Research Department of the Netherlands Institute for International Relations ‘Clingendael’, as well as a research fellow of the International Centre for Counter-Terrorism – The Hague (ICCT). Van Ginkel specialises in the nexus between international law, including human rights and humanitarian law, and security issues. She has a great knowledge with regard to the United Nations and other security organisations. Special focus in her research is on counter-piracy and counter-terrorism issues.