CTC 20th Anniversary | An Interview with Cecilia Naddeo on Legal and Criminal Justice Issues

2021 marks the 20th anniversary of the adoption of Security Council resolution 1373 (2001) and the establishment of the Counter-Terrorism Committee. As part of the year of commemoration, CTED experts reflect on their work. 

Ms. Cecilia Naddeo is the CTED Legal and Criminal Justice Coordinator and has been with CTED for the past nine years, serving previously as a Human Rights Officer and as a Desk Officer for African States. This interview has been edited for brevity.

What motivated you to come to the United Nations and to CTED?

Ms. Naddeo: This is my first UN job. I joined the Organization in 2013. I think that what has motivated me throughout my career (and in this post, in particular) has been the issue of pursuing accountability and working on victims’ rights, particularly in a criminal justice context. So, I'm a criminal law lawyer by training but also a human rights advocate by work. Prior to coming to the UN, and to CTED, I had worked mostly at the regional level in Latin America. And I was very excited to get the opportunity to work from the global perspective: first, as a Human Rights Officer, later as a Desk Officer with the Africa team, and currently as the Legal and Criminal Justice Coordinator (which of course takes me back, in a way, to my initial motivation to look work on the issue of criminal justice and accountability for victims).

What does legal and criminal justice involve, and why did the Security Council include it in resolutions?

Ms. Naddeo: Of course, there are legal underpinnings to every type of counter-terrorism measure or operational aspect of it. By “legal”, here, I mean something adopted by national legislatures. We work to enhance domestic criminal justice in particular. That’s very important in the context of countering terrorism because, at heart, some of the conducts that we look at are the type of acts that are criminalized as terrorist offences or as other types of offences, not only in domestic law but also in accordance with the international framework. There are 19 international counter-terrorism instruments, which define terrorist acts as terrorist offences to be incorporated into domestic law. And that's where the legal and criminal justice piece comes in. It's not only about criminal justice, I would say, because when you look into any other policy or operation relating to counter-terrorism, you also look at whether it's legally binding. We see it quite a lot in counter-terrorism strategies, as well as in prosecution, rehabilitation and reintegration strategies. One of the questions that always comes up is whether it is something that’s in accordance with the domestic legal framework. Another issue that perhaps should be mentioned, with the Council’s adoption of resolution 1373 (2001) 20 years ago, is the issue of international judicial cooperation. And in the context of legal and criminal justice, other relevant issues concern the proscription of terrorists or groups or terrorist groups. There are several questions there regarding whether it is in accordance with the rule of law, but also more generally speaking in accordance with applicable international human rights standards.

How have legal criminal justice requirements evolved over time?

Ms. Naddeo: I think it’s always a good departure point to think about resolution 1373 (2001), which talks about the domestication and criminalization of certain acts as terrorist acts. The resolution called for enhanced cooperation among investigators, prosecutors, and judges in a variety of settings, and I think that, over time, there’s been a need to operationalize that call. So, it's one thing to domesticate and criminalize. Another thing is to conduct a sophisticated investigation, prosecution and adjudication of a particular case. And the Security Council has picked up on this in its resolutions, in terms of enhancing investigative techniques, especially; how to conduct complex investigations; how to look into the linkages between terrorist offences and, say, international crimes; and how to look at the linkages between terrorist offences and their financing. So, in that regard, the requirements have become more and more detailed in terms of the efforts required of national authorities, investigators, and prosecutors to look at the core of the issue and bring terrorists to justice. 

Another issue that I think is relevant is the more recent phenomenon of persons intending to travel to a third country to commit a terrorist offence elsewhere. And I think, legally speaking, that raised quite a lot of questions in terms of subsequent Security Council action, which very much followed the scheme of resolution 1373 by calling on Member States to criminalize dedicated offences pertaining to travel. That was something that drew criticism from international human rights law lawyers and other actors but ultimately led to the requirement for Member States to criminalize those offences and further prosecute them. The Council had also spoken about looking into issues surrounding which cases you would actually investigate and prosecute, given the scarcity of evidence or other pressing issues, and had coined terminology pertaining to the development of PRR strategies for suspected terrorists, including foreign terrorist fighters and their accompanying family members. That led to a whole range of additional elements to be considered in the context of legal and criminal justice requirements, particularly when you look at prosecutorial strategies, how to select and prioritize cases, and how to look into the potential to harvest information or evidence to substantiate your case. And in that context, CTED in particular had looked into how to assist investigators and prosecutors to broaden their range of options and not rely only on confessions and other types of information easily obtained in the criminal justice process. 

Perhaps another issue that I would note is that of the Council's call for States to look at rehabilitation in prison for terrorist offenders. That’s a rather recent call and it’s something that other UN agencies with which we’ve partnered closely (such as UNODC and even UNOCT), had looked into. It comes with its own special expertise: how to assist Member States (and, in particular, correctional officers) to deal with certain type of inmates; how to classify them; and how to conduct intake interviews to assess the risk that they pose to the prison community at large and, more importantly, how they might be rehabilitated and ultimate reintegrated back into society.

CTED has effectively partnered with several UN and non-UN entities, supporting regional fora that allow for prosecutors, investigators, and judges to discuss how to cooperate better via the formal channels such as mutual legal assistance (and even promoting extradition where needed), but also informal channels, based on reciprocity. 

What progress has been achieved? Do you feel like the work done to promote legal and criminal justice in counter-terrorism has made an impact?

Ms. Naddeo: It's important to talk about partnerships. CTED hasn’t done this alone; nor has the Counter-Terrorism Committee. As I mentioned before there has been a need for an additional layer of specialization for both investigators and prosecutors when dealing with complex criminality involving the commission of a terrorist offence. So, there have been efforts to enhance informal contact-to-contact type of regular communication, particularly between prosecutors and judges who specialize in the investigation, prosecution and adjudication of terrorist offences. In that context, CTED has effectively partnered with several UN and non-UN entities, supporting regional fora that allow for prosecutors, investigators, and judges to discuss how to cooperate better via the formal channels such as mutual legal assistance (and even promoting extradition where needed), but also informal channels, based on reciprocity. I also think that there’s been quite a bit of progress in promoting cross-regional engagement on a range of relevant topics. And I think these can only be said to have enhanced the ability of criminal justice actors to work together and perhaps to broaden their range of options in terms of information to be used as evidence. 

I would mention two concrete examples. One is CTED’s work on behalf of the CTC to support the development of guidelines and various practical toolkits to facilitate the harvesting, storage and collection of digital evidence (which is key to most of the prosecution and adjudication that we see across the globe with respect to terrorism). And another example (which is fundamental and continues to be a work in progress) concerns the various guidelines developed to support investigators and prosecutors in accessing information collected by the military on the battlefield. This is important, particularly in a context where we consider individuals who intend to commit terrorist offences abroad (and actually travel to conflict settings to do so) but may end up being investigated and prosecuted back in their countries of origin. Another an area of relevance to be noted in this context - as I mentioned before – relates to how the CTC looked into this issue of the development of PRR strategies, through its adoption of the Madrid Guiding Principles, in 2015, and the 2018 Addendum. We’ve seen quite an expansion of the idea of reaching out to civil society, as well as to victims, in designing efforts aimed at rehabilitation in prison and custodial settings, in particular, but also outside those settings, and ultimately at reintegration back into communities. Also, the Madrid Guiding Principles and the Addendum have built upon the language of the relevant Council resolutions regarding how to adopt gender-sensitive approaches in dealing with the commission of a terrorist offence and in the context of mass atrocities, as well as how to ensure age-appropriate interventions, especially in the context of juvenile justice and ways to place the best interest of the child at the core of the criminal justice response. 

What challenges remain?

Ms. Naddeo: I think, many. And, as I said, most progress depends on how the terrorism phenomenon continues to evolve. We have the call from the Council and the various international treaties to criminalize certain acts as terrorist offences. But there remains the question of how exactly to define terrorism across the globe. And this is absolutely critical to our engagement because, when we speak with Member States, we task them to criminalize certain offences but also to do so in accordance with applicable international human rights principles, particularly the principle of legality, in order to ensure that the conduct that they are criminalizing is precise and also that the sentence to be applied is commensurate with the type of offence in question. So there remains a lot of advocacy work, a lot of clarification, a lot of engagement with Member States, concerning their need to revise the definitional aspects of terrorism, which has a bearing on how you criminalize offences. I also think that counter-terrorism in particular cannot remain as an all self-sufficient type of approach. It’s important to look into complementary approaches. And there are a variety of issues to be raised there, especially in the context of Security Council-designated terrorist groups operating in conflict settings. There are comparable approaches that look into issues of accountability, as well as issues beyond accountability such as reconciliation between communities and those that have joined terrorist organizations but may not have committed additional crimes. It doesn't seem sufficient to victims or to truth-seeking at large to look into the bare minimum of convictions, based on “membership” offences. We’re also interested in looking into the ability of Member States and criminal justice authorities to harvest evidence that would be beneficial to securing. For instance, it’s not the same to prosecute and adjudicate a terrorist membership offence, a rape offence, an offence relating to the systematic commission of crimes against humanity with a particular intent such as slavery, migrant smuggling or human trafficking. The counter-terrorism effort (and, in particular, its legal and criminal justice aspects) has advanced quite a bit in terms of, for instance, delivering training to prosecutors and enhancing their capacities to collect information beyond confessions.

Is there a success story or a particular moment that stands out over the last 20 years that you’d like to share?

Ms. Naddeo: Sometimes, a discussion with a particular criminal justice officer doing his or her job in a particular setting, with all the attached constraints, gives you a lot of insight into how discussions occurring at the very high level are actually being translated into reality. So, something that I continue to bear in mind is the importance of building capacity on the ground in the context of our overall, more sophisticated approach. And also the importance of doing so while being cognizant of the overall context. It's about the experience of that particular person and how innovative some of the prosecutors and judges have been in seeking justice. I think it’s commendable how those who are investigating and prosecuting terrorist offences put their lives on the line, despite how little protection some of them receive. And perhaps another lesson learned is the importance, for the counter-terrorism community at large, of engaging with other actors (both UN and non-UN) on the ground (those that are actually dealing with issues ranging from migration to human rights to humanitarian access) so that we can place counter-terrorism measures in their meaningful and rightful space, as opposed to trying to make them cover more than they should. And I think that's perhaps another success story: how much of the language used in the Council and elsewhere in counter-terrorism has the potential to be comprehensive in its approach, to be tailored, to take into account other experiences and enhance them. But there's always this tension point and a bit of a misunderstanding that counter-terrorism wants to be the “absolute answer”. And here I think that, in the area of legal and criminal justice, we should be working a bit more to incorporate victims views. 

Ms. Naddeo: En mi experiencia como abogada de derechos humanos en America Latina, en particular Argentina, y como abogada en el área de derecho penal, me parece que, en el tema de terrorismo, la definición concreta del tipo penal es de importancia. Me parece que es útil el trabajo que ha hecho el Comité, en asegurarse que la criminalización de este tipo de delito sea acorde a la aplicación del principio de legalidad. CTED y el Comité han trabajado de manera estrecha con organizaciones de la sociedad civil. Esto es algo importante a resaltar en el contexto no solo de la criminalización del tipo penal, sino también en como la sociedad civil puede apoyar propuestas para llevar adelante cuestiones en materia de rehabilitación en el contexto de prisiones y últimamente reintegración. 
 
 
[Translation]
In my experience as a human rights lawyer in Latin America, in particular Argentina, and as a lawyer in the area of criminal law, it seems to me that, on the subject of terrorism, the specific definition of the criminal offense is important. It seems to me that the work that the Committee has done is useful in ensuring that the criminalization of this type of crime is consistent with the application of the principle of legality. CTED and the Committee have worked closely with civil society organizations. This is something important to highlight in the context not only of criminalization of the criminal type, but also in how civil society can support proposals to carry out rehabilitation in the context of prisons and ultimately reintegration.