I. Defining Relevant Criminal Offenses
Define criminal offenses to cover terrorist recruitment and facilitation, in order to implement international obligations, including those contained in UN Security Council Resolutions (UNSCR) 13733 and 21784 , and provide the basis for an effective criminal justice response to the threat of terrorist recruitment and facilitation (GCTF’s Rabat Memorandum, Good Practice 125 ).
Ongoing initiatives include:
Some multilateral bodies have taken measures and are considering additional measures that involve the criminalization of certain terrorist recruitment and facilitation activities:
Council of Europe (CoE)
Adopted on 19 May 2015 the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism6(Additional Protocol), which implements UNSCR 21787 and calls for all parties to criminalize, among other conduct, traveling for the purpose of terrorism, and the funding, organization and otherwise facilitation of such terrorist travel. The Additional Protocol is open to signatories to the Convention8 , including nonCouncil of Europe Member States. The Additional Protocol currently has 30 signatories, including the European Union.
Discussing a new Directive on Combatting Terrorism, which would build upon the provisions addressing terrorism recruitment and facilitation in prior instruments, including the 2002 EU Framework Decision (amended in 2008) and the 2005 CoE Convention on the Prevention of Terrorism, and would implement the relevant international standards and obligations (i.e., UNSCR 21789 ; CoE Additional Protocol; FATF Recommendation No. 5). The EU Commission has proposed that the new Directive will require that EU Member States shall take the necessary measures to ensure that travelling abroad for the purpose of terrorism, any act of organization or facilitation that assists any person in such terrorist travel, knowing that the assistance thus rendered is for that purpose, is punishable as a criminal offense when committed intentionally.
Many countries are investigating and prosecuting terrorist recruiters and facilitators by enforcing criminal laws, consistent with relevant national laws, prohibiting categories of terrorist conduct that encompass recruitment and facilitation:
Terrorist recruiters and facilitators are being prosecuted under criminal offenses prohibiting participation in terrorist activity.
Terrorist recruiters and facilitators are being prosecuted under offenses prohibiting participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of an act of terrorism.
The UK’s Counter-Terrorism and Security Act of 2015 sets out provisions to disrupt the ability of people to travel abroad to engage in terrorist activity and then return to the UK, enhance the ability of operational agencies to monitor and control the actions of those who pose a threat, and combat the underlying ideology that feeds, supports, and sanctions terrorism.
Terrorist recruiters and facilitators are being prosecuted under criminal offenses prohibiting the provision of material support to terrorist activity or to terrorist groups.
Other countries are enforcing existing laws, or have passed new laws, with offenses specifically referring to recruitment and facilitation to terrorism or participation in foreign armed conflict:
Albania, Bosnia & Herzegovina, Kosovo, and Macedonia
Each of these countries enacted new criminal legislation in 2014 and 2015, and has since brought prosecutions and obtained convictions for crimes involving (with terminology differing somewhat by country) the recruiting, organizing, training, equipping, and facilitating of others to participate in an unsanctioned manner in foreign armed conflicts.
A law adopted in 2015 criminalizes not only active recruitment for terrorist purposes, but also passive recruitment, while punishing the conducts of organizing, financing, or promoting travels abroad aimed at committing terrorist acts. The law also covers “lone wolf” terrorists involved in conduct unequivocally aimed at committing terrorist acts. An increased penalty is foreseen for training or instructions through information technology or electronic tools. Competent authorities may request Internet service providers to immediately block access to websites utilized for terrorist recruiting activities, including incitement to commit terrorist acts, as well as training for the purpose of terrorism. Failure to remove illegal content will result in a ban on access to the Internet domain.
Enacted in 2012, and is now enforcing, a Prevention of Terrorism Act with offenses, among others, including a prohibition on recruiting or facilitating the recruitment of another person to be a member of a terrorist group or to commit or participate in the commission of a terrorist act.
Enacted in June 2015, and is now enforcing, a new law which criminalizes, among other terrorism-related conduct, recruiting by any means whatsoever, training or coaching or attempting to recruit, train or coach one or more persons, in order to integrate them into terrorist entities, organizations, bands or groups, inside or outside the territory of Morocco.
Amended its criminal code in February 2015 to add, among other offenses, the crime of self-radicalization, which includes joining through social media a terrorist organization and collaborating with the terrorist organization or pursuing its aims.
EU Member States have domestic criminal laws relating to terrorist recruitment, incitement, training, as well as participation in the activities of a terrorist group in accordance with the relevant EU instruments.
3. S/2015/939 (23 December 2015).
4. S/RES/2178 (24 September 2014).
5. Supra note 2.
6. CM(2015)61-final (19 May 2015).
7. Supra note 4.
8. Council of Europe Convention on the Prevention of Terrorism, CETS No.196.
9. Supra note 4.