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 was tasked with developing a set of non-binding recommendations regarding the range of measures that might be employed at the national or local level as an alternative to pre-trial detention or postconviction incarceration for individuals charged with, or convicted of, terrorism-related offenses.1 While this document focuses on some key considerations regarding the use of these types of measures2 during the pre-trial and post-conviction stages3 , it is important to note that some States allow for the use of alternative measures during the adjudication stage. These recommendations could also be applicable to States that offer these types of measures.
The CJ-ROL Working Group, in conjunction with the International Institute for Justice and the Rule of Law (IIJ), convened two meetings4 of criminal justice practitioners and experts to consider the issues surrounding the use of alternative measures for terrorism-related offenses and to determine how best to frame this issue for States, as they consider using the full range of criminal justice responses to countering terrorism and violent extremism. This document is informed by the findings and conclusions from these meetings of practitioners and experts.
The idea of using pre-trial and post-conviction alternatives for persons charged with any terrorism-related offenses reflects a paradigm shift. Given the serious threat to national security that terrorism represents, the vast majority of States would not have even considered alternative measures for such individuals only a few years ago. However, there may be a need to consider these types of measures in appropriate cases because of the broadening of some governments’ counterterrorism strategies to include efforts to prevent and counter violent extremism.
Some of the specific considerations highlighted by the expert group that warrant this discussion on the use of alternative measures include:
- The expanded use of inchoate offenses/preparatory acts to arrest individuals at the earliest possible stage before they can travel, commit, or otherwise directly support an act of violence, as highlighted in UNSCR 21785
- The increased number of returning “foreign terrorist fighters” (FTFs) where the availability of evidence regarding their criminal activities while in conflict or non-conflict areas may be limited6
- An increased presence of first-time offenders among those radicalized to violence including juveniles, accompanying family members, and individuals with diminished mental capacity
- Improved investigative and prosecutorial capacity of many States to handle terrorism-related cases is resulting in more people charged with terrorism-related offenses and an increased number of offenders in the criminal justice system
- The concern about individuals becoming radicalized, or radicalizing others, to violence while in detention centers or prisons
Due to these factors, there is a need to think about effective ways to handle these individuals in order to reduce recidivism, prevent further radicalization to violence, promote disengagement, and ensure eventual reintegration. Since the use of alternative measures may involve some element of risk, States may opt to offer these types of measures for certain types of offenders based on their specific personal circumstances, including their level of culpability, the nature of the criminal offense, and the risk they pose to society.
Although the use of alternative measures for terrorism-related cases is a new concept in many States, there is already experience in employing pre-trial and post-conviction alternative measures for other types of violent crimes. Therefore, there is data regarding the benefits these types of measures can produce. For instance, successful interventions can reduce risk to public safety and security by effectively rehabilitating and reintegrating the individuals so that they are law-abiding, productive members of society. For individuals charged with, or convicted of, terrorism-related offenses, the use of these alternative measures provide an opportunity to start the rehabilitation and disengagement process earlier where they may have a better chance of success. Also, these measures avoid some of the negative effects of detention on offenders and their family members, such as stigma and economic hardship. In addition, the costs associated with alternative measures are typically less than those associated with pre-trial detention or post-conviction incarceration.7 Furthermore, the use of an alternative measure can assist in reducing prison overcrowding, thereby reducing the opportunities for prison violence due to the low number of staff to inmates. Offering an alternative measure to an individual charged with, or convicted of, a terrorism-related offense may also assist in gathering information and securing cooperation regarding other offenders or crimes.
Regardless of the stage at which an alternative measure is considered, there are some general elements that comprise the framework of any measure including:
- Eligibility and referral
- Incentives and sanctions
- Oversight and protection of the rights of the individual
- Public outreach and awareness
These elements could be addressed in a national policy that guides the use of alternative measures for terrorism-related offenses. Furthermore, this policy should clearly address the balance between national security and public safety against the considerations of the individual offender. States are encouraged to consider using these non-binding recommendations when developing and implementing alternative measures for terrorism-related offenses, while recognizing that implementation of these recommendations must be consistent with applicable international law, as well as national law and regulations, taking into account the varied histories, legal systems, and resources among States.
Finally, this document on the use of appropriate alternative measures is just one facet of the overarching Life Cycle Initiative. Some of the other efforts under this Life Cycle Initiative include good practices on addressing juvenile justice within the counterterrorism context, recommendations regarding legal frameworks needed for rehabilitation and reintegration, recommendations on the role of families in countering violent extremism, and recommendations on reintegration of FTFs.8 These recommendations on the use of appropriate alternative measures should be considered in tandem with other GCTF materials9 in order to ensure a comprehensive criminal justice response to terrorism-related offenses.
1. “Terrorism-related offenses” are defined in national legislation, including offenses which implement international obligations arising from applicable treaties or binding United Nations Security Council resolutions, including travel related to terrorist activities as defined in United Nations Security Council Resolution 2178 on Threats to International Peace and Security Caused by Terrorist Acts (UNSCR 2178) (S/RES/2178, 24 September 2014). Terrorism-related offenses may also include, as recommended in the GCTF’s Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector: conspiracy, solicitation, and other preparatory acts of terrorism, such as acts to facilitate the commission of a terrorism offense, credit card fraud to fund the travel to an area of conflict for terrorist purposes, or support of a terrorist group; attempts to commit and aid or abet terrorist acts; and terrorist financing.
2. While the specific types of measures will vary among States due to their legal system and national legislation, some of the common alternatives to pre-trial detention include bail, house arrest, electronic monitoring, conditional release that may require checking in with law enforcement or other criminal justice authorities, and diversion. Some of the common post-conviction alternatives to incarceration include probation or judicial supervision, day/daily reporting, electronic home monitoring, suspended or deferred sentences, community service, and restitution. Depending on the jurisdiction, some of these post-conviction alternatives may also be available during the pre-trial stage. Similarly, some pre-trial alternatives may also be used after a conviction.
3. These recommendations are applicable to individuals who are in the process of being, or already have been, radicalized to violent extremism and have been arrested for a terrorism-related offense. While the term offender is used throughout this document, there is recognition that a person is innocent until proven guilty. Thus, for any reference to the pre-trial stage, an individual is viewed as the accused.
4. On 18-19 February 2016, a group of criminal justice sector practitioners met in Valletta, Malta, to discuss alternative measures for terrorism-related offenses and helped developed the framework for these recommendations. On 7-8 July 2016, this group of criminal justice practitioners met again in Attard, Malta to review, discuss, and edit a draft version of these recommendations. This final document includes substantial input and comments from practitioners representing a diverse number of States as well as organizations focusing on criminal justice issues.
5. Supra note 1.
6. States may know that an individual traveled to a conflict or non-conflict area but lack the necessary evidence to support certain criminal charges and thereby have to charge the offender with a lesser crime for which there is an evidentiary basis to support the charges.
7. The United Nations Office on Drug and Crime’s (UNODC) Alternatives to Incarceration Toolkit notes “that the daily average cost per prisoner in Sweden in 2003 was EUR 200 compared to the cost of a probationer at EUR 17. In Finland, the cost of a probationer in 2004 was EUR 2,800 per year, compared to the cost of a prisoner at EUR 44,600. In Estonia the cost of supervising each probationer is about ten times less than the cost of maintaining a prisoner and in Romania about eleven times less. In Zimbabwe, for example, where a community service scheme was developed, the monthly cost of supervising an offender on community service was estimated to be about one third of that of keeping a person in prison.” Additionally, a 2013 report by the U.S. Administrative Office for U.S. Courts (Supervision Costs Significantly Less than Incarceration in Federal System, 18 July 2013), revealed that “the annual cost of placing an offender in a U.S. federal prison or federal residential reentry center was roughly eight times the cost of placing the same offender under post-conviction supervision by a federal probation officer” and “[p]retrial detention for a defendant was nearly 10 times more expensive than the cost of supervision of a defendant by a pretrial services officer in the federal system”.
8. See the GCTF’s Life Cycle Initiative.
9. For example, the GCTF’s Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector (Rabat Memorandum) notes that “pre-trial detention must conform to fundamental due process, be limited to cases in which the necessity for detention has been established, and be fairly administered and not affect the presumption of innocence and the procedural rights of the individual being detained”. Other applicable GCTF documents may include the Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders and its Addendum, the Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context, The Hague-Marrakech Memorandum Good Practices for a More Effective Response to the FTF Phenomenon and its Addendum, and the Ankara Memorandum on Good Practices for a Multi-Sectoral Approach to Countering Violent Extremism.
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.
Alternative measures should be based on a comprehensive assessment process.
An effective assessment of the potential threat posed by the offender and his/her eligibility for a pre-trial or post-conviction alternative measure is perhaps the most crucial element, because it informs all aspects of the decision-making process. The specific risk that is being addressed needs to be clearly identified and incorporated into any assessment tool, which should be administered by trained professionals.
Potential factors may include:
- The severity of the crime charged
- The level of radicalization to violence and commitment to violent extremism
- The offender’s receptiveness to intervention and treatment
- The likelihood of the person re-offending
There are a number of different general risk assessment models that may be a good starting point for determining the eligibility of an offender.
Some of the most widely used models used include:
- The “risk, needs, and responsivity” (RNR)
- The invention cycle, which includes assessment, planning, intervention, and evaluation
- The desistance approach, which includes understanding how and why people stop offending17
States may also consider assessment criteria used for other categories of offenders, such as gangs or organized crime members, to help inform criteria that would be most effective for assessing eligibility and suitability of alternative measures for an offender charged with or convicted of a terrorismrelated offense.
In addition to assessing an offender’s suitability for receiving an alternative sentence, it is important to assess the overall effectiveness of alternative measures, both on the individual and as a policy. It is critically important to collect and review data on a regular periodic basis to monitor the effectiveness of any assessment tool or other evidence-based approach in order to identify which aspects of the measure are working and which need adjustment.
17. In addition to general assessment tools used for many different types of crimes, several violent extremism risk assessment tools have been developed in different contexts, which may be useful starting points for developing assessments for suitability of offering an alternative measure.
Alternative measures may utilize a robust incentives and sanctions system.
The objective of incentives is to reward offenders for positive and productive behavior in order to assist in their overall rehabilitation and reintegration into society. Incentives should be scaled based on the progress of the individual and can include offering accomplishment awards for good behavior, such as earning additional privileges, decreasing the level of supervision, or reducing the overall sentence. In addition, States may want to consider the use of alternatives as part of an overall incentive effort in relation to terrorism-related investigations and prosecutions. As highlighted in the GCTF’s Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector, “without adequate incentives, those with knowledge of or involvement in terrorist activity may have little reason to cooperate with law enforcement authorities, especially given the fear of retribution by members of a terrorist organization”.18 Therefore, the use of alternatives may be used as part of an overall strategy to encourage cooperation by offenders in criminal prosecutions, to promote the offenders’ acceptance of responsibility, and to encourage reintegration into society.
Incentives may be added to alternative measures that are offered during the pre-trial and postconviction stages.
Conversely, States should consider building in sanctions for non-compliance with the terms and conditions of the alternative measure imposed. The types of sanctions can vary greatly depending on the alternative measure and nature of the non-compliance. Some examples of sanctions include loss of support services, increased supervision, and incarceration. It is important to explain to the offender at the outset the expectations so that the individual knows what is expected and what the consequences are for failing to meet expectations. As with incentives, sanctions may be included in any alternative measure offered during the pre-trial or post-conviction stage.
Incentives and sanctions should have a legal foundation, should be clearly described, and should have a clear nexus to the goal of the offender’s rehabilitation. Any modifications to the incentives or sanctions in an individual case shall only be done by a competent authority in accordance with an established legal process, including possibilities for an offender to request a review or revision of a sanction. Also, written guidelines for incentives and sanctions procedures may produce stronger and more consistent outcomes for the State as well as the offender.
18. Supra note 9.
The use of alternative measures may be particularly appropriate for special categories of offenders.
Many States already allow for alternative measures for specific categories of offenders who are charged with, or convicted of, non-terrorism-related offenses. These categories of offenders may include juveniles, first-time offenders, and people suffering from diminished mental capacity. There are a number of international standards and norms that highlight specific considerations that should be incorporated into laws and policies regarding how particular groups are handled within the criminal justice system.19 While individuals in these categories still need to undergo the requisite assessments to determine the feasibility and appropriateness of alternative measures, it is generally recognized that more emphasis should be placed on ensuring that vulnerable individuals are not victimized by imprisonment if viable alternatives are available and appropriate. For instance, the International Covenant on Civil and Political Rights20 (ICCPR), the Beijing Rules21, and Recommendation 20 (2003) of the Council of Europe22 call attention to the desirability, whenever possible, of utilizing alternative measures for juveniles charged with a criminal offense.23
19. See generally: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) General Assembly Resolution A/RES/40/33 (29 November 1985); United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules), General Assembly Resolution A/RES/65/229 (21 December 2010); United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, General Assembly Resolution A/RES/46/119 (17 December 1991).
20. Article 14(4), General Assembly Resolution 2200A (XXI) (16 December 1966).
21. Supra note 10.
22. Council of Europe, Recommendation 20 (2003) of the Committee of Ministers to Member States Concerning New Ways of Dealing with Juvenile Delinquency and the Role of Juvenile Justice (24 September 2003).
23. See also the GCTF’s Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context.
Judicial engagement and oversight of alternative measures.
In some States, the judiciary plays a critical role in the imposition of alternative measures. Judges ensure that any alternative measure being proposed for an offender is consistent with international laws, norms, and standards. Also, judges are well-positioned to make individualized decisions regarding the offender before them in court. They are also entrusted with safeguarding the offender’s rights. International standards and norms call for decisions to place an offender into an alternative program shall be subject to judicial review or review by another competent authority. Similarly, the offender should be able to seek judicial review of the imposition of detention or other sanctions that materially restrict the offender’s liberty. For these reasons, States may want to engage with the judiciary on the use of alternative measures for terrorism-related cases so that judges have a clear understanding of these types of measures.24
Second, judges may often be the competent authority to impose an alternative measure in some jurisdictions. Therefore, given the potential prominent role that the judiciary may play in the oversight and implementation of alternative measures, it may be useful to develop specific judicial guidelines regarding the factors that need to be considered when making the determination of detaining an offender or utilizing an alternative measure.
24. This could be done in conjunction with any training on the GCTF’s The Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses.
States should seek to use a multi-stakeholder approach when implementing alternative measures.
While courts may play the central role in imposing alternative measures as well as safeguarding offender’s rights, a multi-disciplinary approach to pre-trial detention and post-conviction incarceration efforts may help ensure that these measures are tailored to the offender.25 To achieve the best results possible, a range of different stakeholders should play a role in the implementation of alternative measures, especially interventions that have rehabilitative and reintegration components. Potential stakeholders who may also be engaged in alternative measures include probation officers, social workers, psychologists, defense lawyers, community leaders, prosecutors, law enforcement officers, and correctional officers.
25. For example, in the Netherlands, there are multi-disciplinary case management teams that develop tailor-made interventions and probation services that provide guidance for reintegration and disengagement.
The use of alternative measures for terrorism-related offenses should be linked to disengagement, rehabilitation, and reintegration efforts.
It is recognized that the underlying premise for using alternative measures in any criminal case is to promote rehabilitation and support successful reintegration into society. This is particularly important for terrorism-related offenses because it can break the cycle of violent extremism and limit opportunities for recidivism and recruitment. When certain alternative measures are utilized, there may be an opportunity to determine why the individual was radicalized to violence and develop an appropriate disengagement and rehabilitation strategy that will help address these underlying motivating factors. As there are different motivations that propel individuals to commit terrorism-related offenses, it is important to have the flexibility to develop and implement measures that are tailored to the offender. By having the appropriate frameworks in place and utilizing proper assessment tools, States should be able to have that ability to administer alternative measures that will allow for effective disengagement and reintegration.
Recommendations outlined in this document are intended to inform and guide States as they develop or consider broadening the scope of existing alternative measures to include individuals charged with or convicted of terrorism-related offenses. One of the overarching objectives of these recommendations is to have States develop tailored interventions that address the specific circumstances and problems of the individual offenders. Such an approach towards offenders charged with, or convicted of, terrorism-related offenses will more effectively address the changing profile of the offenders.
With many States starting to have initial discussions about expanding their criminal justice response to terrorism to include offering alternative measures, there is a need to share information and exchange best practices. It is particularly important for States, international, regional, and multilateral entities, as well as non-governmental organizations, to conduct research and share data on the use of alternative measures in terrorism-related offenses in order to develop effective policies and efforts. Finally, these recommendations are accompanied by a list of existing reference documents, which States can consult as they develop or refine alternative measures for individuals charged with, or convicted of, terrorism-related offenses.