One Team, One Fight: Collecting Criminal Evidence in Military Counter-terrorism Operations
Daniel H. Heinke
International terrorism, and especially jihadism motivated terrorism, has significantly evolved over the last twenty years, and thus the fight against terrorism has evolved accordingly. As the philosophy, the organization, and the strategy of jihadist groups keep changing, those who are tasked with ensuring the security of society must adapt as well.
This sketch intends to highlight the need for an expanded systematic cooperation between those state actors tasked with ‘external’ security and those responsible for homeland security. It expands on the role of law enforcement in counter-terrorism brief the author delivered in a multi-national environment of both military and law enforcement practitioners.
Although it took a long process to reach this conclusion, nearly all Western states now agree that counter-terrorism is not exclusively a task for security agencies, but that the societal awareness towards extremist worldviews, the prevention of radicalization into a violence-promoting extremist ideology, the fight against (and prosecution of) groups or individuals pursuing a violent agenda, and to help individuals to distance themselves from acquired extremist ideologies call for a whole-of-government approach. Thus, all actors who can contribute to this aim – starting with the prosecuting and correctional authorities, law enforcement, and domestic intelligence, but including youth and welfare services, schools, prevention and de-radicalization services, and many others – should act within their respective areas of responsibility, but as parts of an overall strategy to combat violence-promoting extremism. Depending on the respective national structure, this may pose additional challenges as it requires to include all actors no only on the horizontal, but on the vertical (local, regional, state, and federal) levels as well.
Equally accepted is the ever-growing need for international cooperation. As jihadism motivated terrorism explicitly is an international movement, governments need to collaborate in many fields, be it the exchange of investigation-related information between security agencies, or the sharing of good practices between other actors. In many cases these “communities” (for the lack of a better description) already developed trusted and reliable networks.
However, one prominent divide remains: In most countries, the actors responsible for ‘external’ security (primarily the military and the foreign intelligence service[s]), and those with jurisdiction for homeland security (i.e. law enforcement and domestic intelligence services) operate in mostly un-connected and un-coordinated domains (the U.S. representing the most notable exception, as law enforcement agencies are routinely integrated in joint and combined efforts).
The single most obvious point here is the utilization of evidence collected in-theatre (i.e. abroad) during military counter-terrorism or counter-insurgency operations for criminal investigations against specific individuals.
This situation results in equal parts from the lack of agreed procedural standards, and from a traditional understanding of the respective agency’s or service’s role. Bluntly spoken: from the military commander’s point of view it is not overly important whether individual A or individual B within a terrorist group murdered a victim, as long as the military mission to eliminate the threat by said group was accomplished. This information will be crucial, though, when there is the possibility to prosecute either one of these suspects.
Under ideal circumstances all crime scenes and identified housing/hiding areas of terrorist organizations would be thoroughly processed by the proper law enforcement authorities of the specific country. These findings could be transferred to Western authorities via international legal assistance when needed. Unfortunately, in many cases there is either no functioning state, or this state is not capable to execute its legal authority in the area of operations, or this state is not willing to do so.
Nevertheless, there may be the need to secure evidence for future prosecution in Western countries – a challenge that has become obvious in the context of so-called foreign fighters who travelled from their countries to Syria or Iraq to join the ranks of the so-called Islamic State, and who decide to return to their countries of origin at a later stage. These individuals are to be prosecuted by the respective nations – a legal obligation underlined by binding resolutions by the United Nations Security Council. However, the regular criminal justice system quickly is confronted with major obstacles – not the least because often there are no or not sufficiently reliable witnesses available, and that possible material evidence was not secured.
This evidence may include material evidence, e.g. personal belongings of a suspect, electronic devices or other means of communication, finger prints or DNA traces on objects (including, but not limited to weapons and explosives), as well as witnesses who can disclose information on a suspect’s activities.
Therefore, the partner nations of the Global Coalition Against Daesh should consider establishing a reliable system to secure and process evidence in-theatre to be used for later criminal investigations.
The development and exact description of such a system exceeds the scope of this sketch.
However, possible approaches to execute this intent include
- Providing basic training for all military personnel, or for specialists within all units, to have a nearly ubiquitous capability for evidence collection;
- tasking specialized units within the military (e.g. military police, military intelligence) with this support role;
- embedding law enforcement officers with military units on an operational level, to provide for advice and training about this task;
- embedding law enforcement officers with military units on a tactical and operational level, to provide for expertise in securing and handling evidence in criminal investigations;
- and several variations and combinations of the above.
The experts agree that although an intensified cooperation between the military (and foreign intelligence service) and law enforcement authorities is necessary, it is equally important to maintain their respective primary responsibilities and not to blur the distinction between the different roles. Therefore, it may be advisable to embed at least some original law enforcement capabilities within the military structure.
An interesting role model could be agencies that fulfill both civilian law enforcement and military combatant (typically military police) roles (e.g. the Dutch Koninklijke Marechaussee or the Italian Carabinieri) and may be exceptionally qualified for such missions.
It seems obvious that reliable international cooperation is compulsory, especially with regard to multi-national operations. Thus, the states involved should secure timely and comprehensive information exchange procedures, either through long-term agreements or through ad hoc fusion centers – preferably in-theater.
Countries should evaluate their respective systems whether (and how) evidence collected in-theatre during military counter-terrorism or counter-insurgency operations can be transferred to and used in criminal investigations by domestic law enforcement agencies, as this information collected abroad may be crucial in investigating the suspected involvement of identified individuals in terrorist activities and/or war crimes and crimes against humanity.
An established system should provide for systematic exchange of information within the legal frameworks of all actors involved, for reliable standards of evidence collection and a secured chain of evidence, and for international cooperation.
The views expressed in this article do not necessarily reflect the policies of the Bremen state or German federal government.