At the Sixth Ministerial Plenary Meeting in New York on 27 September 2015, Global Counterterrorism Forum (GCTF) Ministers endorsed the launch of the GCTF’s Initiative to Address the Life Cycle of Radicalization to Violence (Life Cycle Initiative). As part of this new initiative, the GCTF’s Criminal Justice and Rule of Law (CJ-ROL) Working Group, together with the Detention and Reintegration (DR) Working Group, were tasked with developing an Addendum to the GCTF’s Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders (Rome Memorandum)1 that would highlight good practices concerning legal considerations regarding rehabilitation and reintegration efforts.2
Specifically, there was a recognition that significant efforts had been done over the past few years to raise the awareness of the importance of rehabilitation and reintegration as a part of States’ efforts to address radicalization to violence; however, there has not been enough attention paid to ensuring that States have the appropriate laws, codes, statutes and/or implementing regulations in place to implement these types of programs. In recognition of this critical gap, the CJ-ROL and DR Working Groups, in conjunction with the United Nations Interregional Crime and Justice Research Institute (UNICRI), convened a meeting of practitioners, held in Turin, Italy, on 23 May 2016, to discuss issues regarding the legal frameworks3 needed to support the rehabilitation and reintegration of “foreign terrorist fighters” (FTFs) and other violent extremist offenders (VEOs) in custodial and non-custodial settings. This Addendum is informed by the findings and conclusions from this meeting of practitioners.
The rehabilitation and reintegration of FTFs and VEOs is a critical component of a multipronged approach to combating terrorism and countering violent extremism; if done correctly, it can reduce recidivism. In order to establish and implement an array of rehabilitative and reintegration services and programs, however, an effective legal framework is needed. States’ laws, statues, codes, and regulations can provide the legal authority to conduct these types of programs. Furthermore, an effective legal framework regarding rehabilitation and reintegration may ensure proper implementation of rehabilitation and reintegration services for offenders and give correctional staff legal parameters for the implementation of these types of programs, and aid in a multi-agency approach.
The GCTF’s The Hague-Marrakech Memorandum on Good Practices for a More Effective Response to the FTF Phenomenon (The Hague-Marrakech Memorandum)4 and the Rome Memorandum stress that rehabilitation and reintegration efforts should include a number of different stakeholders to be effective. In order to involve a broad range of government and nongovernmental actors, including, but not limited to, psychologists, counselors, religious scholars, relevant family members, and local community leaders, States may need to develop or amend their legal frameworks to allow for different actors to participate in the rehabilitative and reentry process. Also, rehabilitation and reintegration efforts can often take place as part of an alternative to prosecution (such as diversion) or an alternative to incarceration (such as probation) whereby an individual participates in intensive counseling and judicial supervision. States may consider the possibility of reviewing or developing laws regarding the use and implementation of alternative sentencing measures to include language that will allow for effective rehabilitation and reintegration efforts.
While existing GCTF documents emphasize the importance of rehabilitation and reintegration efforts and showcase the various components needed to develop and implement successful programs, there is not specific guidance regarding the need to review and potentially update a State’s legal framework. The need for such guidance has been underscored in several GCTF workshops and meetings on this topic whereby some States have noted that they would like to support these types of programs but are prohibited by their existing legal framework. Therefore, the non-binding good practices highlighted below are meant to inform States that are looking to develop or refine their rehabilitation and reintegration programs and policies. It should be noted that the implementation of these practices must be consistent with applicable international law, as well as national law and regulations, taking into account the varied histories, cultures, and legal systems among different States.
Finally, this effort regarding the legal frameworks for rehabilitation and reintegration is just one facet of the Life Cycle Initiative. Some of the other efforts within this initiative focus on highlighting effective programs and policies to counter recruiters and facilitators, addressing juvenile justice within a counterterrorism context, showcasing the role of families in addressing radicalization to violence, and developing recommendations on the appropriate use of alternative measures for certain terrorism-related offenses5 . While this Addendum is meant to be a companion piece to the Rome Memorandum, it should also be viewed in conjunction with other GCTF documents6 in order to have a comprehensive approach to incorporating rehabilitation and reintegration into overarching counterterrorism strategies, policies, and programs.
1. See the GCTF’s Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders (Rome Memorandum).
2. This Addendum complements the two addenda on the Rome Memorandum, ibid, that have already been produced: Additional Guidance on the Role of Psychologists/Psychology in Rehabilitation and Reintegration Programs (International Centre for Counter-Terrorism (ICCT) and Hedayah, 2013); and Additional Guidance on the Role of Religious Scholars and other Ideological Experts in Rehabilitation and Reintegration Programs (UNICRI, 2013).
3. For the purposes of this Addendum, legal frameworks refer to a State’s constitution, legislation, procedural codes, and regulations.
4. The Addendum to the GCTF’s The Hague-Marrakech Memorandum on Good Practices for a More Effective Response to the FTF Phenomenon (The Hague-Marrakech Memorandum) also discusses, among other issues, specific considerations regarding the development of comprehensive reintegration programs for returning FTFs.
5. For further information on the Life Cycle Initiative, and tools contained therein, see the GCTF website, www.thegctf.org.
6. These GCTF documents include, among others, The Hague–Marrakech Memorandum on Good Practices for a More Effective Response to the FTF Phenomenon, and its Addendum, the Ankara Memorandum on Good Practices for a Multi-Sectoral Approach to Countering Violent Extremism, the Plan of Action on for Identifying and Countering Terrorist Recruiters and Facilitators, the Neuchâtel Memorandum on Juvenile Justice in the Counterterrorism Context, and Recommendations on the Effective Use of Appropriate Alternative Measures for Terrorism-Related Offenses.
States should have appropriate legal frameworks pertaining to rehabilitation and reintegration efforts in their national legislation and procedural codes that are consistent with international law, standards, and norms.
There are a number of international instruments as well as standards and norms that highlight the importance of rehabilitating and reintegrating offenders. If States are developing new legislation or reviewing existing legislation in this field, they may want to consult these documents as a starting point for guidance. For instance, Article 10, paragraph 3 of the International Covenant on Civil and Political Rights states that “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”.7 Furthermore, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), which provide comprehensive guidelines on the management of prisoners, includes specific references to the requirement for a legal authority or legal framework to underpin policies.8 In addition, the Mandela Rules note the importance of rehabilitation and reintegration. For example, Mandela Rule 107 notes “[f]rom the beginning of a prisoner’s sentence, consideration shall be given to his or her future after release and he or she shall be encouraged and provided assistance to maintain or establish such relations with persons or agencies outside the prison as may promote the prisoner’s rehabilitation and the best interests of his or her family”.9
For those outside of a custodial setting, the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules) also highlight the importance of legal frameworks by noting in rule 3.1 that “[t]he introduction, definition and application of non-custodial measures shall be prescribed by law”.10 In addition, the Tokyo Rules call for States to develop and operate a wide range of sentencing alternatives in order to assist offenders in their early reintegration into society. While international instruments, and international as well as regional norms and standards, can provide baseline guidance on rehabilitation and reintegration efforts, it is vitally important that legal frameworks for rehabilitation and reintegration are embedded in national legislation.
7. General Assembly Resolution 2200 A (XXI), annex (16 December 1966).
8. General Assembly Resolution A/RES/70/175 (17 December 2015). It should be noted that while the Mandela Rules references the need for laws to underpin policies and procedures, there is not a direct requirement for rehabilitation but rather it highlights the importance of rehabilitation and reintegration.
9. Ibid. 10 General Assembly Resolution A/RES/ 45/110 (14 December 1990).
10. General Assembly Resolution A/RES/ 45/110 (14 December 1990).
States should ensure that their legal frameworks allow for targeted and tailored targeted rehabilitation and reintegration efforts for special categories of individuals.
There are certain categories of offenders that may have different rehabilitation and reintegration needs. Therefore, countries should ensure that the legal framework allows for tailored efforts for particular categories of offenders such as juveniles, individuals suffering from mental illness or cognitive deficits, women, and foreigners. In regards to juveniles, the United Nations standards and norms in crime prevention and criminal justice may provide some overarching guidance on rehabilitation and reintegration policies and procedures. For instance, there are the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)11, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules)12, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)13, and the United Nations Guidelines for Action on Children in the Criminal Justice System14. All of these documents emphasize the need for a variety of different services and facilities designed to meet the different needs of young offenders re-entering the community. Countries may wish to review their criminal justice laws and criminal procedural codes to see if there are adequate allowances for rehabilitating and reintegrating juveniles.
The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules)15 recognize the specific conditions and needs of women prisoners. Specifically, these rules state that “prison authorities, in cooperation with probation and/or social welfare services, local community groups and non-governmental organizations, shall design and implement comprehensive pre- and post-release reintegration programs which take into account the gender-specific needs of women.”16 The Bangkok Rules also call for the use of relevant bilateral or multilateral agreements to transfer non-resident foreign-national women prisoners to their home country. This also dovetails with the need to conduct an overall review of a country’s laws and international agreements regarding transfer of offenders, which may have an impact on rehabilitation and reintegration efforts. There are a host of questions and issues surrounding the rehabilitation and reintegration of foreign-national prisoners such if they are to be deported upon having served their sentence, will they receive the rehabilitation assistance and where will they be reintegrated. It is important to address these types of issues as early as possible so that the appropriate legal frameworks are in place for proper treatment of these individuals.
11. General Assembly Resolution A/RES/40/33 (29 November 1985).
12. General Assembly Resolution A/RES/45/113 (14 December 1990).
13. General Assembly Resolution A/RES/45/112 (14 December 1990).
14. Economic and Social Council Resolution 1997/30 (21 July 1997).
15. General Assembly Resolution A/RES/65/229 (21 December 2010).
16. Ibid at Rule 46.
States should review existing legal frameworks to ensure that roles and jurisdictional responsibilities are clearly defined in order to allow for an effective, integrated multi-stakeholder approach to rehabilitation and reintegration.
Good Practice 7 of the Rome Memorandum states that “[r]ehabilitation programs could incorporate a broad range of cross-disciplinary experts, with close coordination among the relevant departments and personnel involved.”17 Since effective rehabilitation and reintegration efforts often rely on a multitude of different actors and institutions, country’s legal frameworks should clearly identify the objectives of the rehabilitation and reintegration efforts being conducted within the criminal justice system. Furthermore, the legal frameworks should define jurisdictional responsibilities, articulate requirements of agencies, and encourage collaboration among criminal justice, health and human services, and other relevant government and non-governmental agencies.
17. Supra note 1.
States should seek to incorporate into their legal framework language regarding incentives for participating in rehabilitation and reintegration efforts.
Good Practice 19 of the Rome Memorandum “notes that States could consider the use of incentives for inmates participating in rehabilitation programs, as appropriate.”18 Correctional literature does demonstrate that motivation to change is an important precursor to disengagement and treatment success. Even in cases where individuals are placed in involuntary treatment programs, incentives can assist in engaging and motivating offenders once in the program. Therefore, States may want to include language on the use of incentives for engaging in treatment, training, and other rehabilitative measures in sentencing laws or guidelines, laws on parole or probation, or laws regulating prison operations.
18. Supra note 1.
States should consider its legal framework for protective and security measures 8 when it considers appropriate reintegration strategies and programs for rehabilitated FTFs and VEOs.
Since some rehabilitated terrorists may be at risk of retaliation when transitioning back into society, States should consider their legal options to provide protection to a rehabilitated FTF or VEO or an individual who has renounced their affiliation with a terrorist organization. Specifically, States should consider their legal frameworks to offer protection to such individuals and assist in their re-entry into society.
States should develop or update clear operating policies and procedures for correctional and detention facilities that include information regarding rehabilitation and reintegration contained in international standards and norms as well as in their legal frameworks.
In addition to making sure that a range of different laws, statutes, codes and/or regulations allow for the implementation of rehabilitation and reintegration programs, it is important to have this information incorporated in prison operation manuals, internal policies and procedures, as well as training curriculum. Since these internal manuals and policy documents provide instructions to employees on the day-to-day activities relating to managing a prison, including specific references to international and domestic legislation regarding rehabilitation and reintegration may increase staff familiarity with this information and thereby bolster the likelihood for proper implementation.
There is broad consensus that rehabilitation and reintegration efforts should not follow a onesize-fits-all approach. These efforts need to be based on clearly articulated objectives with clear outcomes. A key element to developing effective and comprehensive rehabilitation and reintegration programs and policies is having the appropriate legal framework in place that gives States the flexibility they need to develop efforts to address the specific issues they are facing with FTFs and VEOs. Given the cross-cutting and multi-disciplinary nature of rehabilitation and reintegration efforts, States should review their laws and procedural codes to ensure that they have the legal authority to conduct the types of rehabilitation and reintegration efforts that they deem to be the most useful and impactful.