I. General Recommendations Regarding Alternative Measures
Alternative measures for terrorism-related offenses need to be consistent with national legislation and practice and may be guided by relevant international and regional norms and standards.
There are a number of international and regional norms and standards that provide an overarching framework and guidance for the establishment of alternatives to pre-trial detention and post-conviction incarceration.10 While the development of alternative measures within a State will need to account for the specific political, economic, social and cultural situation as well as the national legislation and legal system, these international and regional standards offer general guidance on the aims and purposes of alternative measures. Key themes in these documents that may be helpful in developing national policies regarding the use of alternative measures for terrorism-related offenses include striking “a proper balance among the rights of individual offenders, the rights of victims and the concern of society for public safety and crime prevention”11 , as well as ensuring that the human rights of offenders are respected and protected. In addition, these documents highlight the importance of rehabilitation of offenders and their successful reintegration into the community.12
10. The relevant international standards include: International Covenant on Civil and Political Rights (Art. 9 and 14), General Assembly Resolution 2200 A (XXI), annex (16 December 1966); United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), General Assembly Resolution A/RES/ 45/110, annex (14 December 1990); Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly Resolution A/RES/40/34 (29 November 1985); UN Economic and Social Council Resolution: Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, E/RES/2002/12 (24 July 2002); Art. 37 and 40, United Nations Convention on the Rights of the Child (CRC) (A/RES/44/25, 20 November 1989).
11. The Tokyo Rules, Rule 1.4, supra note 10.
12. UNODC, Introductory Handbook on the Prevention of Recidivism and the Social Reintegration of Offenders, Criminal Justice Handbook Series, page 9 (2012).
An offender’s rights must be respected when imposing an alternative measure.
An offender’s rights must be respected and protected throughout the criminal justice process, including when utilizing an alternative measure. As referenced in the recommendation above, a number of international and regional norms and standards emphasize the need for legal safeguards when applying non-custodial measures. Specifically, the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules) “call for the dignity of the offender subject to non-custodial measures shall be protected at all times”.13 An underlying principle found in many of these international and regional standards is that alternative measures generally require the offender’s consent, which may enhance both compliance with and effectiveness of any measure.
13. Rule 3.9, supra note 10.
Community and family engagement should be a component of an alternative measure.
Alternative measures should seek to involve the community and the offender’s family, where appropriate.14 Such involvement can bolster the relationship of the offender with the community and increase his or her sense of belonging and responsibility to them. This is particularly important for individuals who are charged with terrorism-related offenses since the community and family may play a pivotal role in successful disengagement from violent extremist behavior. The Tokyo Rules underline the importance of having family and community engagement in non-custodial measures by noting “that public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community. It should complement the efforts of the criminal justice administration.”15
14. While family members can be a highly positive influence on an individual, it must be noted that there are cases where parts of the community or a family member may have played a role in the criminal activity or are otherwise not supportive of efforts to promote disengagement, rehabilitation, and reintegration.
15. Rule 17.1, supra note 10.
States may engage in a comprehensive public outreach and awareness campaign about the use of alternative measures for terrorism-related offenses.
States may consider engaging in a comprehensive public outreach and awareness campaign to inform its citizens how non-custodial measures ensure accountability for acts committed by the offender, the need for public participation in their application, and the potential positive impact of these types of measures. The importance of public outreach is underscored in the Tokyo Rules, which states that “[a]ll forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of noncustodial treatment and the social integration of offenders”.16 Such outreach should anticipate the legitimate safety concerns of members of society, address the needs of any potential victims, and incorporate any research data. Furthermore, the community should understand and support the overarching societal benefits that may be gained by having the individual participate in an alternative measure. Public outreach efforts may also help reduce any stigmatization of the offender.
16. Rule 18.3, supra note 10.
States should ensure that appropriate resources and infrastructure are in place to implement alternative measures.
In order to utilize alternative measures for terrorism-related cases in the most effective manner, States should ensure that the appropriate frameworks are in place in order to administer these measures. The nature and formality of these frameworks will vary among States; however, a key component is the establishment of a legal basis for using an alternative measure. Furthermore, States should make sure that the appropriate financial, institutional, and human resources are available for implementing alternative measures. In addition, States should conduct appropriate long-range planning and forecasting to ensure continuity and consistency.