The Role of the Military in Securing Suspects and Evidence in the Prosecution of Terrorism Cases before Civilian Courts: Legal and Practical Challenges

Abstract

Notwithstanding the fact that civil authorities are usually involved in the investigation and prosecution of terrorist crimes, reality on the ground often leads to a different situation. Indeed, the military may be called upon to carry out law enforcement activities when embedded in situations characterised by conflict, high risk level of threat and/or a lack of local civil capacity. In this Research Paper, the role of the military when performing law enforcement activities in terms of collecting evidence and/or securing suspected terrorists is analysed. ICCT Research Fellows Dr. van Ginkel and Dr. Paulussen point out that past experiences, for instance from counter-piracy operations and evidence-based operations, may provide some guidance for future cases. After having outlined these various contexts, the Research Paper turns to the legal frameworks applicable in these situations and their challenges. In addition, the authors address specific legal challenges which may arise when military authorities are involved in the gathering of evidence and the arrest and detention of suspects of terrorist acts. Lastly, very practical challenges are examined that stem from the insecure environment in which the military operate, such as difficulties in sealing off the area, recovering bodies, immediate hearing of witnesses and so forth. In conclusion, the authors argue that even though arresting terrorist suspects and collecting evidence in terrorism cases would ideally be the task of regular law enforcement officials, the new task of certain law enforcement activities could in fact be added to the mandate of the military, as long as they are properly trained and can follow standard operating procedures. Finally, the authors outline a series of recommendations to all involved stakeholders.