• E4J University Module Series: Counter-Terrorism

• Module 3: Overview of the International Counter-Terrorism Legal Framework

• Introduction and learning outcomes

• Key issues

• • Defining the 'Rule of Law'
  • United Nations Global Counter-Terrorism Strategy
  • International cooperation and the United Nations Counter-Terrorism Strategy
  • Legal sources and the United Nations Global Counter-Terrorism Strategy
  • Regional and national approaches
  • International legal frameworks
  • International human rights law
  • International humanitarian law
  • International refugee law
  • Current challenges to the international legal framework

• Exercises and case studies

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

• References

 

Published in July 2018.

 

 

  This module is a resource for lecturers  

 

Exercises and case studies

 

This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.

The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.

Exercise 1:  Introduction to IHL

Watch at least one of the following videos:

• International Committee of the Red Cross (2014). Rules of war (in a nutshell).
• International Committee of the Red Cross (2008). An animated history of the creation of the Red Cross Red Crescent Movement and basic introduction to IHL: Story of an Idea.

Then put the class, depending on student numbers, into smaller groups (e.g. 5-7 students) to discuss some of the issues raised, e.g.:

• Were you surprised by what IHL is and is not, e.g. that it is not primarily about humanitarian issues such as rendering assistance?
• What issue(s) struck you the most and why as you watched the film(s)?

Reflecting on recent conflicts, during which many human rights violations have been perpetrated including to civilian populations and protected objects, do you think that IHL has made any difference in practice 'on the ground'? Why do you think this is the case? Please give examples?

 

Exercise 2:  Debate on the conundrum of returning foreign terrorist fighters (see Teaching Guide)

Hold a debate. Put the class into two groups: (1) representatives of the Ministry responsible for national security; and (2) a family wanting the foreign terrorist fighter to return home. Allow a little time (e.g. 10-15 minutes) for groups to consider their key arguments and then make a short presentation (e.g. for 5 minutes each). Issues for each group to explore could include:

• Whether or not the returning foreign terrorist fighter should be allowed to re-enter his/her country of origin.
• What security threat (actual/perceived) he/she poses to the returning State.
• Whether or not the person should be rendered stateless.
• Whether and how such a person should be reintegrated into society whenever possible.
• What the implications of statelessness would be, e.g. on the individual, the family, other States, wider society; whether (dis)proportionate, and so forth.

 

Case study 1:  Constitutionality of anti-terrorism law

The Southern Hemisphere Engagement Network Case

Human rights advocates filed a test case against the Anti-Terrorism Council created by the President of the Philippines pursuant to a new anti-terrorism law, The Human Security Act of 2007 (RA 9372).

The advocates argued, among others, that the law would permit activities, such as the surveillance of certain groups that would be contrary to constitutional guarantees. Additionally, there was concern that the law was unduly vague and broad in its scope, such as its definition of terrorism as intended to create "widespread and extraordinary fear and panic among the populace and coerce the government to give into an unlawful demand". As a consequence, it would be problematic for enforcement agencies to enforce the law with no clear standard against which to measure the prohibited acts.

The government responded to such concerns by arguing that the doctrines of void-for-vagueness and overbreadth did not apply to the present case since they applied only to free speech cases and that the Human Security Act of 2007 regulated conduct, not speech.

The Supreme Court sustained the government's position on two bases:

(1) Petitioner - advocates do not have locus standi (legal standing) to question the law because they failed to demonstrate any personal interest in the outcome of the controversy. In fact, there are other parties not before the court with direct and specific interests, such as the Abu Sayyaf Group, who have been the subject of proscription as a terrorist group before the Regional Trial Court filed by the Department of Justice; and,

(2) A facial challenge to invalidate a statute (i.e. on grounds of it being unconstitutional) is only permitted in free speech cases and does not apply to a penal statute as a matter of law. Allowance of facial challenge in free speech cases is justified by the aim to avert any chilling effect on protected speech, the exercise of which should not at all times be abridged. This rationale is inapplicable to plain penal statutes that generally bare an in terrorem effect in deterring socially harmful conduct.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council , Republic of the Philippines Supreme Court , G.R. Nos. 178552, 178554, 178581, 178890, 179157 and 179461, October 5, 2010.

 

Case study 2:  Exclusion of refugees under the Refugee Convention 1951

KJ (Sri Lanka) v SOS Home Dept.

The case was an Appeal from the UK Asylum and Immigration Tribunal and concerned questions as to the application of article 1F(c) of the Convention relating to the Status of Refugees of 1951. Article 1F precludes from asylum those persons (a) suspected of having participated in the perpetration of crimes against peace, war crimes, or crimes against humanity, (b) serious non-political crimes outside the country of refuge prior to entry, (c) found guilty of acts contrary to the purposes and principles of the United Nations. KJ was a Sri Lankan national who, as a Tamil, had served with the LTTE military.  He had escaped to Britain, after suspicions were raised he had defected to the Sri Lankan military, and claimed asylum and humanitarian protection on grounds of his fear of persecution by government forces and retribution from the LTTE if he returned to Sri Lanka.

The Asylum and Immigration Tribunal had held that he was not entitled to refugee status, even though he would be put at risk from the LTTE if he returned (but not from government forces), because there were serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of article 1F(c) of the Asylum Convention. 

The appeal concerned, among other issues, the finding under article 1F(c). On this point, the Appeal Court held that acts of terrorism, in particular the deliberate killing or injuring of civilians in pursuit of political objects, were clearly "acts contrary to the purposes and principles of the United Nations". In contrast, it did not consider that acts of a military nature committed by an independence movement (such as the LTTE) against the military forces of the government are themselves acts contrary to the purposes and principles of the United Nations. The Court stated that the application of article 1F(c) was straightforward in the case of an active member of an organization that promotes its objects only by acts of terrorism.  In contrast, the application of article 1F(c) was less straightforward as regards the LTTE during the period when KJ was a member, as it pursued its political ends in partby acts of terrorism and in part by military action directed against the armed forces of the Government of Sri Lanka.

KJ (Sri Lanka) v SOS Home Dept ., Judgment of 20 January 2009, Court of Appeal (Civil Division (UK), [2009] EWCA Civ 292.

See further Mark Henderson and Alison Pickup, ' Armed Opposition Groups: Best Practice Guide to Asylum and Human Rights Appeals', Chapter 14, 30 November 2014, electronic immigration network; and Antonio Coco (2013), ' The Mark of Cain: The Crime of Terrorism in Times of Armed Conflict as Interpreted by the Court of Appeal of England and Wales in R v. Mohammed Gul', Journal of International Criminal Justice, Volume 11, Issue 2, p. 425 - 440.

 

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