In 2008 a workshop was held by
the RAND Centre for Global Risk and Security[1] in Washington DC their
main thematic concern was the topic above. This workshop brought together
different experts in the field of security, these included intelligence
officers, lawyers, prosecutors and judges.
All of these experts engage in
the prosecution of terrorists and face difficulties at their respective stages
in the prosecution.
Problems that face the
Intelligence Agencies and Police
1.
Overload of Electronic Data. Security agents may
in an hour receive enough electronic data that may fill up a library. It is
therefore difficult to separate the wheat from the chaff , the meaningful
signals from the background noise[2].
2.
The level of secrecy that is employed by modern
terrorists has increased and become sophisticated[3].
3.
Lack of co-operation between intelligence
officers and the police service, more often than not intelligence officers and
the police do not carry out a common goal. For intelligence officers the goal
is to detect prevent and disrupt in order to get more intelligence, they
therefore at times do not come up with evidence that is admissible in a court
of law but evidence that is aimed at detecting patterns and more intelligence.
The goal of the police is to arrest for prosecution. Naturally there exists
tension between police work and spy craft[4]
4.
The police and intelligence officers often find
it excruciatingly difficult to determine when to foil an attack. At times early
arrests leads to the escape of many and the evidence collected may be of a
circumstantial nature which may not be beyond reasonable doubt.
5.
The evidence that is collected from prosecution
of a terrorist is often sensitive if not classified as such making it public
knowledge has a deleterious effect.
Prosecutors Perspective
Prosecutors
normally have difficult choices in conducting trials and maintaining proper
standards of conduct[5]. It all matters which
context the trial is being conducted in.
In a Specialized Terrorist Tribunal:
6.
There is normally a host of jurisdictional and
evidentiary impediments that limit prosecutors to reach only a small fraction
of success, and it is trite law that jurisdiction is everything in a case[6]
7.
Even where Jurisdiction is not an issue the
evidence is rarely admissible let alone fulfill the burden of beyond reasonable
doubt[7]
8.
A public and open criminal justice system may
not offer adequate protection to classified information that is necessary to
both prosecute and defend in a terrorist trial[8]
9.
Criminal prosecution have a low deterrent effect
on terrorists, if such an effect exists at all[9]
Prosecution within the normal criminal
courts;
10.
There exists a difficult decision for a
prosecutor to make between when to disrupt a terrorist plot this is between the
need to collect as much evidence and intelligence as possible as against the
need to enhance public safety.
11.
In some jurisdictions there exists the problem
of ascribing criminal liability to a terrorist before the actual attack has
occurred. Many jurisdictions have enacted legislation that curbs this.
International Lawyers
12.
There exist problems of ascribing criminal
jurisdiction over terrorists that have been captured miles away.
13.
An international lawyer will experience
difficulty of treating the terrorist as a military target or to apprehend and
try them.
14.
International law gives little guidance on how
to try suspected international terrorists. What legal framework should be used?
Should it be Nuremberg like trials[10] or should we use court
martial[11] which are intended for
soldiers that are in a particular chain of command?
Judges Perspective:
15.
Criminal courts have a presumption of open and
public justice[12]
as such this will not protect classified information that is needed in the
prosecution of terrorists.
16.
There exist procedural and evidential problems
especially where information has been gotten illegally[13].
[1] http://www.rand.org/content/dam/rand/pubs/technical_reports/2008/RAND_CF249.pdf
(Accessed on 10/3/2016)
[2] http://www.rand.org/content/dam/rand/pubs/technical_reports/2008/RAND_CF249.pdf (Accessed on 10/3/2016)
[3] C.
Watson, Close-up. Terrorism, Glyndell
Udanese Publishers, 2010, pg 90
[5] R.
Chesney, Optimizing Criminal Prosecution
as a Counterterrorism Tool, 2008, pg
18: See also https://www.brookings.edu/wp-content/uploads/2016/06/1219_prosecution_chesney.pdf
(Accessed on 10/3/2016)
[6] Owners of MV ‘Lillian S’ v Caltex Oil Kenya,
1989 Civil Appeal no 50 of 1989
[7] D.
Bonner, Executive Measures, Terrorism and
National Security: Have the Rules of the Game Changed?, Ashgate Publishers,
2007, pg 36
[8] A.
Lynch, Inside Australia's Anti-Terrorism Laws and Trials, Newsouth
Publishing, 2014, pg 88
[9] R.
Clutterback, Terrorism, Drugs & Crime
in Europe After 1992, Routlege Publishers, 1990, pg 47
[10] G.
Ginsburg, Nuremberg Trials and
International Law, Martinus Nijhoff Publishers, 1990, pg 240
[11] D.
Mundis, The Use of Military Commissions
to Prosecute Individuals Accused of Terrorist Acts, The American Journal of
International Law Vol. 96, No. 2 (Apr., 2002), pp. 320-328
[12] M.
Dirk, The Oxford Handbook of Criminal Law,
Oxford University Press, 2014, pg 79
[13]
D. Mundis, The Use of Military
Commissions to Prosecute Individuals Accused of Terrorist Acts, The
American Journal of International Law Vol. 96, No. 2 (Apr., 2002), pp. 320-328
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