SECTION I. ACTUS REUS

226. RECRUITMENT – Article 140ter CC criminalises recruitment for terrorist purposes. It was also introduced in 2013, in the wake of the Council of Europe Convention and the update of the Framework Decision. The Article criminalises anybody who recruits another person to commit or contribute to the commission of one of the offences in Article 137, 140 or 140sexies CC, with the exception of Article 137, §3, 6° CC. So this is terrorism sensu stricto, with the exception of threatening terrorism, the offences relating to terrorist groups, and traveling for terrorist purposes (see nos 252–263). The preparatory works talk about recruitment to become a member of a terrorist group. However, membership in itself is not punishable under Article 140 CC (see nos 172–173). The reference to Article 140sexies CC was added aft er its creation in 2016. As was the case for Article 140bis CC, with this addition the Belgian legislature went beyond the obligations of the Directive. The part reading ‘or contribution to the commission’, was added in 2019. This wording is part of the Directive on combatting terrorism, but was not part of the Belgian legislation yet. If necessary, these actions could be prosecuted under Article 140 CC or as aiding and abetting However, since 2016 it was part of the offence in Article 141 CC (see nos 274–276) and to maintain uniformity, the legislature decided to also introduce it in Article 140ter CC. This addition maintained uniformity at the cost of increased overlap.

328. CRIMINAL LAW AND ADMINISTRATIVE LAW – As was the case for Belgium, most restrictions to the right to liberty in the UK take place within the context of the criminal justice system. Contrary to Belgium, however, the UK also has a system of preventatively restricting physical liberty on an administrative law basis. For our purposes the indefinite detention of suspected international terrorists in Belmarsh prison and the subsequent control order and TPIM regimes are the most relevant (see nos 496–519).

329. OVERVIEW OF PART III – This Part of the book aims to do the same as Part II did for Belgium, but now for the UK. This introduction briefl y presents the UK legal system and its context of (counter-)terrorism. The rest of the Part contains three Chapters, the first two of which cover research question 3.11614 and the third of which covers research question 3.2.1615 The first Chapter focusses on criminal law; the second on restrictions of liberty within administrative law; and the third contains a preliminary analysis of the UK rules. The first Chapter is divided into 16 Sections. Section II discusses the definition of terrorism in UK law, Section III focusses on terrorism sensu stricto and Sections IV to XIV on the offences of terrorism sensu lato (see no. 7).

SECTION I. ACTUS REUS

243. RECEIVING TRAINING – Together with the offence of providing instruction or training, the legislature introduced the offence of receiving training for terrorism. It stated that it made operational and logical sense to also criminalise the person who receives the training. The wording of this offence also closely resembles that of the Directive.1262 Article 140quinquies CC criminalises anybody who, in Belgium or abroad, receives instruction or training as described in Article 140quater CC. The Article explicitly refers to Article 140quater CC with regard to the type of instruction or training, so anything said there (see no. 235) is also applicable here.1263 The training can be in person or via the internet for example.1264 Once more, the Criminal Code states this Article is applicable without prejudice to the application of Article 140 CC.

244. SELF-STUDY – The legislature added a new section to Article 140quinquies CC in 2019. While for the Articles 140bis, 140ter and 140quater CC, it added an aggravating circumstance, in Article 140quinquies CC, it added a second offence. The actus reus of this offence is: in Belgium or abroad, acquiring knowledge yourself or educating yourself in the matters referred to in Article 140quater CC. Because of the wording of the first section, it is generally accepted that its scope only covers people receiving training from somebody e

11. NEED FOR LIMITATION – Before going into detail on the relevance, research questions and choice of countries for comparison, we have to delineate the scope of the topic. As explained, there are two main types of counter-terrorism measures. We will first look at which administrative measures fall within the scope and then at which criminal law measures do so. Since there is a myriad of measures on both sides of the equation, certain choices have been made in order to make an in-depth analysis feasible.

12. ONLY ADMINISTRATIVE MEASURES WHICH LIMIT LIBEUTY AND FREEDOM of MOVEMENT – ‘Administrative measures’ is a very broad concept, and we thus need to limit it in order to clearly define the scope of the research. These measures can affect many human rights, such as the right to privacy, the right to a fair trial64 or the freedom of expression. The potential sentences for terrorist precursor offences are however severe. We therefore need to compare them to the most invasive administrative measures: measures that impact the right to liberty of the people subject to them. The discussion on measures like these focusses on two fundamental rights: the right to liberty (Art. 5 ECHR) and the free movement of persons (Art. 2 of the 4th protocol to the ECHR).

13. ONLY MEASURES WITH DIRECT EFFECT ON THOSE RIGHTS – This demarcation of the scope about measures that impact the right to liberty or free movement of the person subject to them still casts a wide net. E.g. the freezing of assets restricts a person's free movement too since they cannot travel anywhere if they do not have access to the funds to do so.

SECTION I. ACTUS REUS

274. EVOLUTION – This is a first generation terrorist offence, introduced in 2003. It was not included in the Framework Decision but in the International Convention for the Suppression of the Financing of Terrorism, signed by Belgium on 27 September 2001. It was not part of the first draft bill of the 2003 statute either, because Article 140, §1 CC already explicitly refers to the financing of terrorism. However, the Council of State noted that Article 140 CC only covered a certain form of financing, namely the financing of a terrorist group. The legislature also wanted to tackle the financing of individual terrorists and therefore added Article 141 CC to plug this gap. Prosecuting the financer for aiding and abetting the (attempted) commission of a terrorist offence sensu stricto was possible, but requires the terrorist offence sensu stricto to at least have been attempted and the preparation offence did not exist yet. The offence introduced in 2003 criminalised ‘[a]ny person who except in the cases referred to in Article 140, provides material resources, including financial assistance, with a view to committing a terrorist offence referred to in Article 137.’ However, in its recommendations, the Financial Action Task Force (FATF) stressed that terrorist financing offences should not require that the funds are linked to a specific terrorist act.

23. ACADEMIC – Terrorism itself is a problem of great relevance. People are afraid and there is no easy solution. The need to minimise the threat of future attacks is a strong incentive to intervene harshly. Governments have proven to be willing to do away with certain human rights protections in order to achieve increased security (or at least the feeling of increased security). Scholars have warned against this both when it comes to administrative measures and when it comes to the preventive use of criminal law. Therefore, we will take into account both systems, compare them in a systematic manner and provide concrete recommendations on which steps to take to minimise the potential for arbitrariness. In doing just this, our research is able to add valuable information to the debate on how best to tackle terrorism in a democratic society based on the rule of law.

24. SOCIETAL AND PRACTICAL – The societal and practical relevance are high as well. In preventing terrorism, governments have sometimes intervened harshly and arbitrarily (e.g. extraordinary renditions, indefinite detention in Guantanamo or Belmarsh). Getting a clear view of which measures are least conducive to arbitrariness and which safeguards can be put in place is essential in order to react appropriately to the threat that terrorism poses. Sometimes human rights protection and security are seen as antithetical, but this is not our view at all.

INTRODUCTION

112. POSSIBLE LIMITATIONS TO LIBERTY – The terrorist offences discussed in Chapters II to X of this Part can lead to a sentence aft er conviction, which would usually be a prison sentence. The exact duration of these prison sentences is discussed in the Chapters covering the different offences, but it is clear that a term of imprisonment constitutes a deprivation of liberty. Alternative sentences are possible as well. These alternatives can also severely limit a person's right to liberty and are discussed in Subsection I of Section I of this Chapter. Another option for Belgian judges is to impose a sentence with postponement of its enforcement or to suspend sentencing all together. This means the perpetrator does not go to prison but his right to liberty can be limited through conditions they have to abide by. These options are discussed in Subsection II of Section I. In Section II, two possible options to extend the limitation of the right to liberty beyond a prison sentence are discussed. Those two options are being placed under the supervision of the Sentence Enforcement Court, which is an additional criminal penalty that is currently in force, and the security measure for the protection of society, which is a security measure proposed in the context of the new Criminal Code. Finally, deprivations of liberty are possible before a conviction as well. These rules on pre-trial detention are discussed below in Chapter XII of this Part (see nos 286–309).

SECTION I. ACTUS REUS

264. PREPARATION – In 2016, the legislature wanted to crack down further on terrorism. In this context, it decided to criminalise preparatory actions, because a terrorist offence is oft en impossible without these actions. The Directive does not contain a similar offence. Indeed, it simply states that criminalising preparatory acts undertaken by a person entering a Member State with the intention to commit or contribute to the commission of terrorism stricto sensu is a way to respond to terrorist travel (see no. 252). Article 140septies CC criminalises anybody who prepares a terrorist offence meant in Article 137 CC, with the exception of Article 137, §3, 6°;. This means every terrorist offence sensu stricto except for threatening terrorism. The second paragraph of the Article includes a list of actions that can be preparation:

• 1° Gathering information on locations, occurrences, events or people which makes it possible to carry out an action on those locations or during those occurrences or events or to cause damage to those people, and observe those locations, occurrences, events or people;

• 2° The possession, purchase, transport or manufacture of or search for objects or substances which are of such a nature that they can be dangerous to other people or cause substantial economic damage;

The need to prevent – The wave of terrorist attacks that were carried out in Europe during the first two decades of the century, has abruptly brought the issue of terrorism to our doorstep. Terrorism has induced fear in the population and governments are trying to control the risk posed by terrorists, who are seen as ‘dangerous people’. The idea of risk management has shift ed the focus from repression to prevention.

Avoiding a large number of people suffering harm is the main reason why terrorist attacks should be prevented, which gives governments an imperative and even an obligation to prevent them. Under the European Convention of Human Rights (ECHR) states have a positive obligation to protect the right to life, to family life, and to a home to the people under their jurisdiction and to protect them against inhuman or degrading treatment and torture. Doing nothing to prevent terror attacks could therefore be a violation of human rights. However, states cannot blindly intervene and the European Court of Human Rights (ECtHR) has emphasised the need to ‘strike a fair balance between the defence of the institutions of democracy in the common interest and the protection of individual rights.’

4. Criminal law and administrative law – If there is a form of consensus on the fact that terrorism should be prevented, the answer to the question of how to effectively do so, is less straightforward. Even just defining terrorism has proven to be a difficult task for states and academics.

The risk society, prevention of harm and terrorism – The accomplished social scientist Ulrich Beck famously wrote that human society had become a risk society. He theorised that modern society had become a risk society in the sense that it is increasingly occupied with debating, preventing and managing risks that it itself has produced. More recently Garland spoke of a culture of control, in which ‘protecting the public has become the dominant theme of penal policy.’ Other criminologists and legal experts have since then elaborated and built upon these theories. 9/11 is oft en seen as a pivotal moment in world history and in the history of (counter-)terrorism, as terrorist networks went global. Shortly aft er 9/11, Beck wrote an article in which he identified terrorism as one of three different global axes of confl ict in world risk society.5 Over 20 years later, terrorism is still considered to be a considerable problem that must be tackled. Fortunately, most governments seem to be succeeding fairly well in developing a counter-terrorism approach which has probably reduced the number of victims.

2. International and European context – As terrorism networks became more and more international, so did the fight against terrorism. Chiefl y under the auspices of the United Nations (UN), several terrorism-related conventions were negotiated in the second half of the 21st century. More recently, the UN Security Council issued several resolutions on combatting terrorism.

TRANSITIONS, INTERNATIONAL LAW AND GLOBAL GOVERNANCE

THE EVOLUTION OF INTERNATIONAL LAW AND GLOBAL GOVERNANCE

Theme 1: In the late 19th century, the leading European states established modern international law and used it to justify their colonization of much of Africa, Asia and the Pacific on the grounds that sovereignty was the prerogative of the European ‘civilized’ states, not the ‘non-civilized’ ones. With the gradual retreat of imperial and colonial power after WWI and WWII, the number of states recognized under international law rapidly expanded as the legal basis of sovereignty evolved from control over territory, to the right of self-determination, and to state endorsement of universal principles. The global project of transitional justice represents the latest stage in the evolution of global governance of a world of states through their integration, by consent, into the liberal global order founded on the legal and political universalisms of human rights and democracy. The transitional justice project is informed by a progressive, aspirational and utopian view of history in which public international law provides a vision of a cosmopolitan future of ‘a united humanity governed by law’. International law exists as ‘a promise of justice’ in a world imagined as governed by cosmopolitan public institutions. From an historical perspective, the transitional justice project embodies the paradox of contemporary international law. On the one hand, the jurisdiction of international law is seen as universal, based on legal principles, and not state sovereignty; on the other hand, the nation-state remains the basic political unit upon which the international legal order is constituted.

INTRODUCTION

On February 14, 2005, former Prime Minister Rafiq Hariri was assassinated by a massive car bomb in the hotel district of Beirut, the very area with which he himself had become so closely identified because of his prominent role in rebuilding post-war Beirut. Known as ‘Mr. Lebanon’, Rafiq Hariri was a larger-than-life figure in Lebanese business and politics serving as Prime Minister between 1992–1998 and 2000–2004. He had earned his enormous wealth in the business of construction and infrastructure development in Saudi Arabia. In death, he became the focus of a mass outpouring of public grief with around one million people gathering in Martyr's Square in Beirut to mourn their loss. The shock event was collectively experienced as an historical turning point in Lebanese politics. His dramatic death galvanized political movements for and against the UNSC's international investigation into the Hariri assassination, known respectively as the March 14 Movement and the March 8 bloc. The March 14 Movement, led by Sa’ad Hariri, the son of the assassinated ex PM Rafiq Hariri, accused Syria of being behind the assassination and demanded its immediate military withdrawal from Lebanon in accordance with UN Security Council Resolution (UNSCR) 1559 (September 2, 2004). It also called for the establishment of an international tribunal to prosecute those responsible for his murder. From the beginning, the March 8 bloc opposed the UNSC resolutions establishing the United Nations International Independent Investigation Commission (UNIIIC) under UNSCR 1595 and the Special Tribunal on Lebanon (STL) under UNSCR 1757 which they saw as just the latest attempt by the US to reduce Syria's influence over Lebanese affairs and increase its own.

TRANSITIONAL JUSTICE AS CONFLICT MANAGEMENT

This book has been a study about transitional justice and impunity in an era in which criminal accountability after atrocity is seen as mandatory for the successful transition to peace. The UN endorsed four pillars insists that states uphold international human rights and humanitarian standards to meet victims’ rights to justice, truth, reparations and guarantees of non-repetition after mass violence. Criminal accountability is also seen as a judicial necessity to (re)establish democratic state sovereignty based on the rule of law and to secure a monopoly over the use of force. The insistence on accountability reflects the historical normative shift in the international legal order prioritizing human security over state security with the expansion of global norms of individual human rights’ protection, what Teitel refers to as the emergence of ‘humanity's law’.1487 After WWII, the Nuremberg trials signalled the internationalization of the legal protection of the individual and restrictions on state sovereignty. However, during the Cold War, sovereignty reasserted itself over the international legal protection of the individual because the US and USSR superpowers supported authoritarian governments as clients to consolidate their spheres of influence and because the UN Charter gave concessions to recently decolonized states to limit their international obligations and duties and expand their sovereignty rights to support their development.1488 The emergence of the transitional justice project coincided with the post-Cold War expansion of global human rights and a new regime of international intervention to enforce them when a state's repressive actions were condemned by the international community.

INTRODUCTION

The transitional justice project emerges at the end of the Cold War as a mechanism to support the consolidation of global liberal governance through the expansion of international law. In Latin America, its focus was the violent legacy of Cold War counterinsurgency policies of the authoritarian military regimes, established by coups during the 1960s and 1970s, which were backed by the US National Security Doctrine. The regional military dictatorships had convincingly defeated their local leftist insurgencies using severe repression which included the deniable crimes of forced disappearance and extrajudicial killing to terrorize their populations into submission. When the region's militaries eventually withdrew from power, either because they had been discredited or had negotiated comfortable agreements with elites, they were able to dictate the terms of democratic transition which invariably included amnesty laws. In the Uruguayan case, the military, who had come to power following a creeping coup in 1973, negotiated a pact with political party leaders (Naval Club Pact 1984) on the condition of amnesty and amnesia. The Pact closely resembled the Spanish transition Pact of Forgetting (1977). During Phase II transitional justice the policies of amnesty and amnesia were justified as necessary to achieve peace through democratic consolidation and national reconciliation. Another important factor constraining criminal accountability was the lack of effective international judicial remedies for largescale political crimes at this time. The international codification of human rights was in its early stages; the key human rights treaties were only just coming into force; and most countries in the region only became parties to the America Convention on Human Rights in the 1980s.

INTRODUCTION

In 2007, Prime Minister Zapatero introduced the Law of Historical Memory (LHM) as a restorative justice initiative to recognize the rights and memory of the Republican victims of the Spanish Civil War (1936–9) and acknowledge their experience of repression and suffering under the Francoist dictatorship (1939–1975). The LHM was introduced to challenge the official censorship of the post-transition investigation of the past imposed by the ‘pact of forgetting’ (pacto del olvido), institutionalized in the Amnesty Law (1977) as a necessary condition for political reconciliation and democratic transition. The LHM was designed to disrupt, but not overturn, the political fix of the Amnesty Law (1977) by introducing a human rights lens on the past in order to help democratize Civil War memory through the inclusion of Republican memory and a recognition of their suffering. Its focus, as a transitional justice initiative, was the recovery from oblivion the estimated 130,000 missing Republicans buried in clandestine mass graves scattered around the country during the Civil War. The LHM in Articles 11–14 legally acknowledge the existence of the ‘violently disappeared’ and establish the state's role in facilitating their investigation, location and identification. By focusing on the disappeared, the LHM harnessed firstly, the traumatic memory of the surviving relatives of the disappeared to search for their lost members; secondly, the flexibility of the dead body as a cultural technology for signification and resignification of past violence; and thirdly, situated the historical Spanish Civil War disappeared within a transitional justice framework and state obligations in international law towards the disappeared.