By Eeva Heikkilä
This article concerns the new UAE Terrorism Law and its applicability to the case of Mr Alaradi, a client of 9 Bedford Row.
Mr Alaradi was seized by UAE State Security officials in Dubai on 28 August 2014. Initially, he faced charges for funding and cooperating with terrorist organisations under the UAE’s newly-formulated controversial anti-terrorism law. However, after much criticism of the compatibility of Law 7-2014, particularly Article 3(2), with international law and the attempts of the UAE authorities to use it retroactively, charges under this controversial law against Mr Alaradi were dropped on 22 March 2016. My legal opinion to this effect in particular in the matter of Mr Alaradi was considered by all interested parties in much detail and, in my view, it is not surprising that subsequently the UAE prosecution lowered the charges.
Mr Alaradi now faces a new fabricated set of allegations, albeit of much lesser gravity. It appears he is no longer charged with terrorism, but mere criminal misdemeanours.
Alaradi’s case has opened a legal discussion concerning the UAE’s counter-terrorism laws and via that case is it the intention of this article to highlight some concerns prevalent in this discussion.
Before moving on to evaluating the weak basis of the new allegations against him, it will be of use to recall the shaky foundation of the original allegations under which he was arbitrarily detained for over 500 days.
On 20 August 2014 the Prince of the United Arab Emirates (UAE) approved Law 7-2014 on combating terrorism and terrorist activities, gazetted on 31 August 2014 and enacted on 1 September 2014. The list of terrorist entities was issued only on 2 November 2014.
An increased international threat of terrorism has given rise to a greater desire to apply criminal law across borders. The international application of legislative and judicial jurisdiction requires the relevant laws to be clear and their application consistent. This is required as increasingly the locus of the individual or the alleged crime to which the law is being applied internationally lies within the territory of another sovereign State. Where exceptions to the clarity and consistency exist and the law does not apply in a like manner, defensible reasons for this must exist. Above all, the internationally applied laws should be foreseeable.
Article 3(2), concerning the scope of implementation, states as follows:
The provisions of the present Law shall apply to every foreigner present within the State’s territories after having committed, against another state abroad, any of the offences set forth therein and mentioned in any of the effective international treaties to which the State is a member, in case such foreigner is not extradited.
As is explained below, a careful study of the Article exposes a number of concerns that are of such gravity that they cannot be reconciled with the principles of international law.
The sovereignty of states represents the basic constitutional doctrine of the law of nations. The corollaries of the sovereignty and equality of states are the prima facie exclusive jurisdiction over a territory and the permanent populations living there, the duty of non-intervention in the area of exclusive jurisdiction of another state and the ultimate dependence upon consent of obligations arising from customary law or treaties. Jurisdiction is an aspect of sovereignty and under the law of the nations the overriding presumption is that jurisdiction is territorial and may not be exercised extra-territorially without a specific justification under international law. As a general rule, this means that the UAE has no jurisdiction to intervene in the territory of another sovereign state.
This is a notion which is difficult to reconcile with Article 3(2) which maintains that the law 7-2014 shall apply to every foreigner in the UAE who has committed, against another state abroad, any of the offences in this law, in case such foreigner is not extradited. Indeed, a significant shortcoming in the law is that it allows the use of extraterritorial jurisdiction without justification.
It is beyond doubt that international law generally prohibits the application of law across borders by states, unless specific conditions are met, in specific circumstances. For instance, international law provides expressly that all states are entitled to apply their domestic law to alleged pirates. It has been stated in the famous case of Piracy Jure Gentium by Viscount Sankey, Lord Chancellor of Great Britain that ‘whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma … and to crimes committed by its own nationals where ever committed, it is also recognised as extending to piracy.’ Further, Article 13 of the Treaty on International Penal Law 1889 states that ‘Crimes considered as piracy by public international law fall within the jurisdiction of the State under whose power the criminals come.’
If international law freely allowed the application by States of domestic law abroad, such express provision allowing it would not have been needed. Moreover, should a general departure from jurisdiction restricted to terra firma be allowed, it would have been certainly allowed in the matter of piracy, which by definition occurs outside territorial jurisdiction, on the high seas.
Further underlining the matter, Sir Robert Ywedall Jennings, former President of the International Court of Justice, stated in 1957 of States claiming jurisdiction extraterritorially:
States do not give themselves unlimited discretion in the matter [of applying their laws]. Their municipal laws – even those of States which make extensive claims to extraterritorial jurisdiction … It seems reasonable to infer from the existence of these principles of extraterritorial jurisdiction, firmly entrenched as they are in the practice of States, that some justifying principle is thought to be necessary to found extraterritorial jurisdiction; that it is not a matter for sovereign discretion.
These examples are fleshed out for the purpose of showing that where the UAE claims its domestic law to apply internationally, it would have to be expressly so allowed under the principles or express agreements of international law. As Law 7-2014 and in particular Article 3(2) currently stand, their extraterritorial application is not allowed under the established principles or international agreements.
Further significant concern regarding the law is that it arguably allows the absence of any genuine connection of Mr Alaradi to the UAE. The circumstances in which a State may apply its legislative or judicial jurisdiction relate to territory, active or passive personality, protective or universal jurisdiction. These categories are, effectively, examples of legally required connections between the State and the person over whom jurisdiction is sought. In the presence of such connection, the State is fully within its rights to exercise its jurisdiction.
In the increasing internationalisation of criminal law, a normative framework is emerging where a genuine connection is required between the individual who is the subject of jurisdiction and the State seeking to claim jurisdiction or reasonable interests of the state in question. A key element in the requirement of genuine connection is that the State claiming jurisdiction is obliged to justify its claim over the individual. As stated by Sir Robert Ywedall Jennings in the British Yearbook of International Law in 1957: ‘It would be intolerable if States were permitted without any justifying legitimate interest to attempt to control the doings of foreigners in their own countries.’ Yet it must be noted that in this particular framework certain flexibility is allowed simply because significant consideration is given to the rights of other states involved. There are, of course, limits to this flexibility and for example it would not extend to sanctioning a unilateral exercise of jurisdiction over a non-national without an agreement with their State of nationality.
Intolerably, and in dire violation of the most fundamental principles of international law, Article 3(2) clearly attempts to control the doings of foreigners in other States. It fails to require any nexus whatsoever between the individual the jurisdiction is sought over and the UAE. Should the required connection consist of a non-national taking a family holiday in the UAE territory, this proposition would at best be frivolous. It is plain that holidaying, as such, cannot constitute a meaningful and genuine connection under international law. Consequences of ignoring this requirement are potentially grave. This lacuna in Law 7-2014 could, at its worst, be employed to justify a detention in the UAE of a non-national for alleged offences abroad, but who is in fact not suspected of any crime in his country of nationality or elsewhere.
Additionally, the doctrine of extraterritorial jurisdiction is being applied defectively in Law 7-2014. If the State claiming jurisdiction has failed to establish a genuine connection to the individual the jurisdiction is claimed over, it will be nearly impossible for the State to claim to satisfy the principles governing the legal application of extraterritorial jurisdiction.
In this context, it must be noted that the contention in Article 3(2) that it shall apply to every foreigner present in the UAE who has committed, against another state abroad any of the offences mentioned in any of the effective international treaties, does not, in fact, assist the UAE in justifying extraterritorial jurisdiction. In general, basic tenets of jurisdiction in international treaties are the nationality and territorial principles. For example, none of the exceptional conditions for jurisdiction in the International Convention for the Suppression of the Financing of Terrorism or the International Convention for the Suppression of Terrorist Bombing would justify jurisdiction in a matter where a non-national is being unilaterally accused of an offence abroad by the UAE and not the State of nationality or any other State, and where no connection to the UAE exists.
Should a meaningful connection exist, extraterritorial jurisdiction can be claimed under various grounds. Most relevantly, under the protective principle, nearly all States assume jurisdiction over non-nationals for acts done abroad which affect the security or other key interests of the state. At a lower level of gravity, under the so called effects doctrine the State in question might justify invoking the protective principle where an extra-territorial offence causes harmful effects in the prescribing State without threatening the security of the state. From this it is plain that no such principles or doctrines can be justified in a situation where charges and the prosecution case exclusively concern offences allegedly occurring abroad with no impact on the UAE as to the national security, violation of domestic laws or otherwise.
Article 3(2) does not aim to claim extraterritorial jurisdiction under these two express headings, the internationally allowed protective or effects principles, nor does it apply as drafted to the UAE nationals. As such, all it amounts to is bad law, void of effective extraterritorial reach. Further, applying Article 3(2) to an individual with whom the UAE has no genuine connection, outside the established doctrines of extraterritorial jurisdiction, could only amount to incongruous and wanton legal proceedings.
As a further grave concern, Article 3(2) may enable false prosecution. Article 3(2) maintains that Law 7-2014 shall apply to every foreigner present in the UAE after having committed, against another state abroad, any of the offences set forth therein, in case such foreigner is not extradited.
Individual suspected of a crime will not be extradited either because the requested State refuses to extradite the individual, or simply because no State seeks the individual’s extradition. If a request for the extradition of the non-national is not made by a foreign State, it would most obviously indicate that the individual is not suspected nor wanted for any offence abroad. Yet, bizarrely, Law 7-2014 effectively reserves the right for the UAE to unilaterally prosecute foreign individuals on behalf of a State of nationality or the locus of the alleged crime, but which has not requested this of the UAE and makes no claim that any offence has in fact taken place. Inexplicably, the Law presumes that in such situation the UAE would seemingly be able and legally justified to unilaterally investigate the allegations concerning events in the territory of another State.
If in the circumstances referred to above the extradition of a foreign national is not sought by another State, it is clear he has no case to answer in the UAE. Any proceedings in the UAE would amount to a false prosecution of a foreign individual for a crime abroad, which no one claims has taken place. It is impossible to fathom how the legal proceedings would be conducted and thus, inevitably, it would amount to nothing but an exercise in futility.
What is more, in the case of Mr Alaradi, Law 7-2014 constitutes ex post facto law. While Law 7-2014 contains significant shortcomings and suffers from lack of clarity, so does its application by the UAE. In general, the law must be applied according to certain, clearly established principles and in a systematic manner. Yet in the case of Mr Alaradi it appears that the UAE has decided to take an ad hoc rather than systematic approach in applying the relevant legal norms, as well as setting aside the most fundamental principle governing the application of criminal law.
The charges against Mr Alaradi are based exclusively on Law 7-2014. However, it is legally untenable that Mr Alaradi would have been arrested under the provisions of Law 7-2014 as is claimed by the UAE, as the law was not in force at the time of his arrest. Having been promulgated in August 2014, the Emirati constitution states that legislation may only be applied after it is officially issued in the Federal Gazette. The government did not publish Law 7-2014 in the Federal Gazette until 31 August 2014 thereby taking effect on 1 September 2014, while Mr Alaradi was seized by UAE State Security officials in Dubai on 28 August 2014 and transferred to Abu Dhabi. Thus, in the simplest terms, the UAE unlawfully seeks to apply Law 7-2014 to the case of Mr Alaradi retroactively.
Criminalising acts which were legal at the time they were taken violates the principle of legality and constitutes a breach of the international law, including Article 11(2) of the Universal Declaration of Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, Article 15 of the Arab Charter of Human Rights, Article 7 of the European Convention of Human Rights, Articles 25 and 26 of the American Declaration of Rights and Duties of Man and Article 26 of the UAE Constitution which unequivocally states that no person may be arrested, searched, detained or imprisoned except in accordance with the provisions of the law. Importantly, Article 27 of the Constitution further states that crimes and punishments shall be prescribed by the law and that no punishment shall be imposed for any act of commission or act of omission which was completed before the issue of the law which provided for such punishment.
The reasons why retroactive application of criminal law is not allowed are compelling. Indeed, today it is a rare occasion that an application of such a fundamental and universally uncontested principle should be clouded in a country claiming to be governed by the rule of law.
Most importantly, the guarantee enshrined in the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) aims to provide effective safeguards against arbitrary prosecution, conviction and punishment. Key principle refuting retroactive legislation is that the individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. It will by inevitably and profoundly unfair to sanction certain acts if at the time the individual committed the act he had not had any reason to abstain from it. It is also widely accepted notion that all enacted laws may be legal but for a law to be legitimate it must, among other requirements, be clear and foreseeable to an ordinary citizen.
While the presumption against retrospectivity is unwavering in the international Convention rights as noted above, it is also a strong and widely applied notion of common law fairness. For example, the prohibition on retroactivity in criminal cases is an uncontested principle of the English law. In the case of R v Rimington in 2006Lord Bingham stated that retroactivity in criminal law is prohibited under ‘two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.’ Concerning the principle of legality in an ongoing litigation brought by a private individual against the State, it was stated by Mrs Justice Lang in the case of Reilly heard at the Queen’s Bench Division of the Administrative Court in the United Kingdom in 2014, that ‘[r]etrospective legislation may be defined as law making which alters the future legal consequences of past actions and events,’ while adding that:
The constitutional principle of the rule of law was expressly recognised in section 1, Constitutional Reform Act 2005. It requires, inter alia, that Parliament and the Executive … abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive … unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.
In other words, the basis of the principle against retrospectivity is ‘no more than simple fairness, which ought to be the basis of every legal rule’ as stated by Lord Mustill in the case of L’Office Cherifien des Phosphates in 1994.
From the laws and statements above it can only be deducted that retrospective legislation is contrary to the general principles of criminal law. In this legal and normative framework exceptions to the principle of legality and foreseeability are nowhere to be found. Thus, under the existing legal structure it would not have been possible for the UAE to justify the application of Law 7-2014 to Mr Alaradi.
It is not possible to draw any other conclusions from Law 7-2014 than that it suffers from a debilitating lack of clarity and while still new, this would imply that it will inevitably be applied unsystematically. The lack of clarity is not defensible. The Law is not foreseeable, as is required of criminal law, in a sense that it will most certainly be applied in an inconsistent manner. The Law fails in its entirety to justify any exercise of extraterritorial jurisdiction and omits a key requirement of a genuine connection between the State and the individual. It also appears to potentially allow a false prosecution where the individuals would rightly have no case to answer. A further travesty is presented by its attempted retroactive application.
Any criminal law containing defects will have grave consequences, so does Law 7-2014. It imposes tough penalties on violators, including the death penalty and life imprisonment. It does not align with international legal norms, and the law if had been used to prosecute Mr Alaradi would most certainly have resulted in a legal tragedy. It is imperative that the gaps in the law be diligently analysed and any shortcomings addressed by the UAE lawmakers. Poorly drafted laws, in particular laws concerning counter-terrorism, can cause untold suffering to innocent people caught by the loose definitions and arbitrary application of those laws.
Inevitably, in light of the initial application of this defective law and evidence showing torture while detained seemingly aimed to produce false confessions, it is my view that all proceedings against Mr Alaradi should be immediately discontinued.