“The issue of punishment is a really important question. There is extraordinary experience of extraordinary crimes in many parts of the world…. We make deals even on the most atrocious crimes, systemic crimes, and we have found ways to do that which don’t include the death penalty… It seems to me that treating [terrorism] as a category that is unlike any other category that we deal with is both intellectually and politically flawed and deserves really serious attention from States as well as advocates.”
Fionnuala Ní Aoláin
UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

This session examined how States deal with citizens who are detained abroad after joining non-State armed groups that have been listed as terrorist by the United Nations. This is by no means a new issue for States but it suddenly became prominent after the collapse of Daech (ISIS) in Iraq and Syria in late 2018, when thousands of ‘foreign fighters‘ were detained in the region, many of whom have been charged, or could be charged, with crimes that carry the death penalty in the countries in which they are being held.
All the speakers agreed that States have responded superficially and inappropriately to this issue, which needs to be addressed by long-term strategies. Asked to say how much public opinion conditions or drives the positions that States take on foreign fighters and terrorism, they responded that governments shape public opinion rather than the other way round, and that governments have acted irresponsibly by making derisory comments in public, tweeting, and preemptively sharing information before cases have been legally adjudicated. In addition, some governments have failed to provide consular protection to certain individuals. In France, the Government initially said that it would take back its nationals and try them, but changed its mind when the media and public opinion argued that returning fighters would disseminate hate speech and continue to commit terrorist crimes. In most matters, nevertheless, public opinion can be educated and persuaded and Governments have a duty to defend and explain their legal and international obligations as well as honour them.

The discussants made a number of specific points.
• A State has legal obligations to its citizens that do not fall away if they commit crimes abroad.
• It has a duty to represent and protect them (consular access).
• It is not broadly entitled to wash its hands of difficult nationals, however unpopular they may be, by cancelling their citizenship.
• ‘Foreign fighters’ who return to their countries of nationality, privately or as a result of diplomatic negotiation, represent a security risk but it is one that their countries of nationality should shoulder and should not palm off to third countries, such as Iraq, that are emerging from conflict and lack the resources to host large numbers of potentially hostile ex-combatants.
• Detainees have the right to fair treatment and justice, whatever their crimes. While it is clearly expensive and difficult to assemble the evidence required to try ex-combatants in court, States of origin have a legal duty to their citizens and should not leave them undefended to be sentenced abroad by weak and overstretched justice systems that cannot guarantee due process or legal protections.
• Terrorism has always been cyclical and its ‘push and pull’ factors will not disappear. Failure to treat detainees accused of terrorist crimes justly will increase the likelihood that terrorism will persist or recur.

The State’s responsibility to represent its citizens

Ms Fionnuala Ní Aoláin focused on the issue of foreign fighters in Syria and Iraq. She argued that, whereas States were able to defer action for a period on the grounds that they lacked information on foreign fighters, they can no longer do so because they now possess an enormous amount of data about the location and identity of foreign fighters who are their nationals. They have a clear duty to clarify and fulfil international state obligations in relation to nationals who are detained abroad for having joined armed groups classified as terrorist.
She specifically criticized Western States that have failed to provide consular access or protection to foreign fighters detained in conflict zones. States have argued that their officials would be endangered if they travelled to conflict areas; but, in fact, States are failing to take measures they could reasonably adopt. Some are modifying consular rules in order to decline responsibility for nationals who have fought for terrorist organizations. To protect human rights and the international rule of law, it is critical to protect the rights, including the right to life, especially of those who are “neither sympathetic nor benevolent”. Those who may have committed grave violations of human rights are entitled to due process and a fair trial. If they are denied justice and treated as exceptional cases in law, “foreign fighters may be used as a Trojan horse to nullify the right to life from the inside out”.

The defence of Tunisian detainees in Iraq

Hédi Yahmed described the Tunisian Government’s response to the cases of Tunisian fighters detained by the Iraqi authorities in Iraq. Proportionally, Tunisia was the source of more foreign fighters than any other country. A large number of Tunisians have been detained in Syria and Libya, where they are neither tried nor formally condemned to death. In Iraq, by contrast, detained Tunisians have been tried and condemned to death, and some have been executed. The Tunisian Government has not chosen to represent or provide consular access to these citizens. Since 2011, it has limited its action to providing administrative assistance to family members who seek to visit or make contact with relatives imprisoned in Iraq.
The situation is complicated by the fact that the Iraqi government does not isclose the names of foreign nationals who are executed, but only reports their nationality.

The defence of detainees in Guantanamo

James Connell spoke in his personal capacity. He is a lawyer for the Military Commissions Defense Organization, which provides legal representation to non-American citizens detained for terrorist offences in Guantanamo. He is the defence lawyer of Amar al Baluchi (@BaluchiGitmo), a Pakistani citizen.
Mr Connell stressed, first of all, that the time to assist a person subject to a capital sentence is before, not after, he has been sentenced. He then described the legal regime that the United States applies to Guantanamo. Detainees there are judged before Military Commissions, which are supposed to be faster and cheaper than regular courts, but in fact are slow and very expensive; cases are not settled for many years, and large numbers of lawyers, judges and staff must be flown in for each hearing. It would be cheaper and more efficient to hold and judge prisoners in the United States. In reality, Mr Connell said, the Military Commissions are not organized to execute justice but to conceal evidence of US torture. Trials are held before military officers instead of a jury, statements obtained under coercion are permitted, and the defence has no power to call witnesses. Indeed, the military authorities rather than the defendant are responsible for appointing representation for the accused. The Commissions are also reserved for non-US citizens.
He urged those concerned about the situation of terrorist detainees in Guantanamo to continue to monitor the situation there. Though applications to attend hearings in Guantanamo are made complicated, and must be submitted from within the United States, NGOS and reporters are entitled to observe hearings and he encouraged organizations to do so.

The defence of French detainees in Iraq

Martin Pradel, a French lawyer, has defended two women detained in Iraq accused of terrorist offences. He criticized the French Government for failing to provide consular support that he requested when he agreed to represent clients in Iraq. Mr Pradel argued that France and other European countries have a duty to repatriate their citizens detained in Iraq (and similar countries), because those detained are their citizens, but also because Iraq is a society traumatized by war, whose institutions are weak, whose judicial officials are not independent and live under threat of assassination, and whose people want revenge for the horrors they have experienced. Iraq is not in a position to judge the crimes of detained foreigners fairly and in accordance with due process. Challenging the claim that Iraq’s sovereignty must be respected and its judges allowed to pass tough sentences, Mr Pradel argued that France was not respecting Iraq’s sovereignty but simply requiring the Iraqi authorities to do its dirty work by neutralizing at a distance the threats that French and other terrorists could represent in Europe.
The speakers emphasized the critical importance of defence lawyers. They are often the only source of assistance available to detained combatants, and frequently work in hazardous environments without adequate support.

Challenges and recommendations

• The provision of a defence lawyer for detainees is critical.
• States have a duty to provide consular protection and should do so consistently and more firmly.
• All States should receive back nationals who have been detained for joining armed groups that are classified as terrorist. Recognizing the security risk they represent and the cost of bringing them to trial, it is nevertheless the only approach that can provide justice, address the causes of terrorism, and share the international burden fairly.