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Nermina Nalic

Fight against Terrorism and Human Rights in Bosnia and Herzegovina

Today, terrorism is perceived as one of the biggest security threats in the world, especially after several severe terrorist attacks in Europe and  the United States. As there is no universally accepted definition of terrorism, in general it is understood that it means use of violent actions or threats which invoke fear, executed in order to achieve political, religious or ideological goals. Often the direct target of violence is not the main target, and attacks are used as means to pass the message. Attacks are a message to the public as a main target, and these messages spread fear or pose demands, depending on the main goal of terrorists – intimidation, violence or propaganda.   

Terrorism is a threat for international peace and security, causing not only loss of people’s lives, but also destabilizing governments, undermine economic and social progress. The fight against terrorism is very difficult due to the complex nature of terrorism and the fact that ways the terrorist act are constantly changing, they are crossing borders thus forcing governments to cooperate. However, this fight is causing a rapid deterioration of situation regarding human rights, particularly the right to life, prohibition of torture, private and family life and  freedom of movement.

It is obvious that the fight against terrorism has a direct impact on human rights, first and foremost as a consequence to the right to life, freedom and physical integrity of victims of attacks, and on the other side is violation of rights of the suspects and the accused in criminal cases. The states are obliged to protect the lives of their citizens and to prosecute perpetrators, but some measures introduced by some countries are questioning the rule of law and human rights protection as a fundamental pillar of a civilized country. Measures supporting torture and inhumane behavior became a standard part of the fight against terrorism, and protection and monitoring of the state of the rights of the accused or suspects are completely neglected. More and more human rights protectors, journalists etc. are raising their voices in an effort to change this. 

Bosnia and Herzegovina and fight against terrorism

Legislation in BiH is basing the incrimination of the acts based on the definition of terrorism from the  Council Framework Decision of 13 June 2002 on combating terrorism 2002/475/JHA as amended by Council Framework Decision 2008/919/JHA of 28 November 2008.

The criminal offence of terrorism has two essential elements: means of execution and a goal. Means of execution are defined and listed in Article 201 Para 4 of the BiH Criminal Code. Means of execution are itemized in the law, and a necessary element is the intent (a clearly set goal) for the desired consequence to be achieved.  The rights of the accused/suspects are guaranteed in accordance with Article 6 of the European Convention on Human Rights (ECHR), and it is article with the highest number of complaints noted in the work of the Strasbourg Court.

 

The situation in Bosnia and Herzegovina (BiH) is a reflection of global trends and environment. Although the European Convention on Human Rights takes precedence over all other laws according to BiH constitutions, and international standards of protection of the rights of accused and defendants are very well defined and guaranteed in respective laws, the implementation is problematic in some cases.

Derogation of human rights is a known institute, and used quite often in the last decade by many governments, including democratic EU countries and USA, in which some terrorist attacks occurred. But derogation has to be limited, necessary and proportional, legally grounded and regularly reviewed. In no way any of these measures should interfere with the normal functioning of a democratic society. Also, some rights, as the prohibition of torture, freedom of thought, right to life, as non- derogable. The fear arisen following terrorist attacks lead to a situation in which the governments used all means they considered necessary to achieve their goal. The general public did not object limitation of their rights, accepting the context presented as ‘us versus them’, as the limitation was seen as a necessary tool to save lives and freedom.

In the context of Bosnia and Herzegovina, an infamous case of so called ‘Algerian Group’, stirred a social debate and concerns, following a blatant violation of human rights.

Algerian Group Case

The Algerian Group is the commonly used name for the case against six persons originating from Algeria from BiH, and five of them had dual citizenship. These persons were imprisoned in Guantanamo Bay US Army camp in Cuba since January 2002. They were accused of conspiracy, for planning to plant explosives in the US Embassy in Sarajevo, but also for their alleged connections with international terrorist organizations, including Al Qaeda. The members of the group are: Bensayah Belkacem, Hadj Boudella, Lakhdar Boumediene, Sabir Mahfouz Lahmar, Mustafa Ait Idr, Mohammed Nechle.

The members of this group were detained in 2001 in BiH, because the US intelligence had some suspicion about their activities. The Supreme Court of the Federation of BiH concluded there is no enough evidence for these persons to be indicted, they were released and immediately illegally turned to the US intelligence officers, who deported them to Guantanamo.

Wolfgang Petritsch, the UN diplomat and the former High Representative in BiH said the US Government was basically blackmailing the UN threatening they will withdraw their troops from BiH if they object deportation of this group outside BiH. "It is my considered opinion that if the US threat would be carried out, the Bosnian peace process would have been seriously jeopardized with likely renewed civil strife as a consequence [...] to my knowledge the US never provided any evidence that could have justified the arrest of the six and their removal from Bosnia," Petritsch said in a September2008 statement to the defense team[1].

 

Already in October 2002, (now unfortunately abolished institutions) Human Rights Chamber of BiH was deciding on the appeal of the Applicants in this case, in two questions – weather there were legal grounds for revoking their Bosnian citizenship they obtained in 1995 and 1997, which was revoked after they were arrested for suspicion of planning terrorist attacks in 2001, and weather their rights guaranteed by the ECHR in Article 3 – prohibition of torture, Article 5 – the right to liberty and security of person, Article 6 – the right to a fair trial, Article 8 – the right to family life.    

The Chamber found the BiH and the Federation of BiH responsible for the violations, since the consequences that the Applicants suffered came out of the actions undertaken by their institutions, including the decision to revoke their residence permits and to extradite them to the US agents. Also, it was established that the Applicants could not exhaust the existing legal remedies because of the situation they were in, or that even that exhausting would change the Applicants’ situation in the USA, as they did not receive a binding decision of the Federation Supreme Court on their appeal on citizenship revocation. The Chamber did not find the right from Article 5 – the right to liberty and security was violated at the moment they were placed in custody, since all the elements proving grounds for suspicion were provided and the custody was legally determined.

The Chamber also found that the BiH and Federation where obliged to verify the legality of the custody that would be obviously imposed by the American army forces against the Applicants, because they were informed by the US Embassy in Sarajevo these persons would be put under control, the obligation of the institutions was to prevent this.

The Chamber also concluded the rights from the Article 6 of the ECHR – more specifically the presumption of innocence was violated, since the grounds for revocation of the citizenship was suspicion of committed criminal offence, and the fact that a report on committed offence was submitted. The grounds for deciding can be determined only following a binding court verdict on guilt, not mere suspicion regarding certain facts.

When deciding on the alleged violations from Article 2 and 3 of the ECHR, the Chamber considered the practices and jurisprudence of the European Court on Human Rights related to human rights in terms of deportation, and claims of the Applicants they would risk lives if deported, as well as possible torture and inhumane treatment. The Chamber especially considered weather the rights to life and prohibition of torture would be respected in the country of destination, in accordance with the European Convention on Extradition (ECE). The Chamber concluded that BiH and Federation of BiH failed to meet the conditions from the ECE, in a way that they did not obtain an indictment confirming the grounds for suspicion of committed criminal offence, and they did not request any guarantees that the death penalty in case the Applicants are found guilty, will not be imposed, having in mind that in 31 states in the USA the death penalty is still imposed. However, the Chamber did not find violations of the Article 3, since it did not consider sufficient evidence of ill treatment journalist reports.

 

After the US Supreme Court issued was deciding in the case Boumediene v. Bush in 2008, recognizing the right for the prisoners and foreign citizen can file complaints for habeas corpus[2] the District Court ordered for 5 BiH citizens to be liberated, because the review of the case established not sufficient evidence was provide. The Applicants appealed that the Military Commission Act of 2006 was unconstitutional, according to habeas corpus suspension clause[3] since in the first instance proceedings the District Court decided the habeas corpus act shall not be applied to the army military bases abroad. The Supreme Court issued an opinion that this Act is in fact unconstitutional, and that the Applicants had the right to writ of habeas corpus, since there were no adequate replacements for the rights entailed in habeas corpus. The Court concluded that it is the fact that the United States, by virtue of its complete jurisdiction and control, maintained de facto sovereignty over the territory of Guantanamo,   to hold that the foreigners detained as enemy combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9 of the U.S. Constitution.

 

The US  released these five persons in 2008, while Lakhdar Boumediene had to wait for 2009 and getting the asylum in France, because the US refused to send him to BiH, and he was afraid to go to Algeria where he could face a death penalty.  

So, in this case we see that serious violations were confirmed by different judicial authorities, and the case itself can be used as a paradigm of the current environment and the state of human rights. 5 persons were illegally extradited, detained for 7 years without any evidence in the name of fight against terrorism and promised better world. Guantanamo still functioning, people still blacklisted without a proper complaint mechanism in place, and a better world still not in sight….

 

[1] Center for Security Studies, Anes Alic, Damir Kaletovic, ‘The Algerian Group Standoff’, http://www.css.ethz.ch/en/services/digital-library/articles/article.html/93863/pdf, of 15.12.2018

[2][2] Gerald L. Neuman, The Extraterritorial Constitution after Boumediene v. Bush, Harvard Law School, Harvard Public Law Working Paper no 08-39

[3] John C. Harrison, The Original Meaning of the Habeas Corpus Suspension Clause, Virginia Public Law and Legal Theory Research Paper No. 2018-47

Nermina Nalic, Rule of Law Monitor - OSCE

Bosnia and Herzegovina