sou · H4B340 · 2016-06-15 00:00:00 — Det förekommer också att en eller flera av de väpnade grup- per som personer värvas till kan anses utgöra en terroristorgan- isation, dvs. en sammanslutning av personer som begår särskilt allvarlig brottslighet eller gör sig skyldiga till försök, förberedelse, stämpling eller medverkan till sådan brottslighet. Ett exempel på detta är den våldsbejakande islamistiska gruppen Daesh som deltar i väpnad konflikt i och . Värvningen sker också genom andra kanaler än vad som var fallet vid bestämmelsens tillkomst och riktar sig i de flesta fall mot enstaka personer. Även i dessa fall riskerar värningen att påverka utrikespolitiska relationer om den tillåts. Många av de personer som bl.a. genom strids- handlingar deltar i den pågående väpnade konflikten i och är tillresta från andra länder, däribland , och det är angeläget att värvningsverksamhet som kan föregå sådan krigstjänst i det längsta förhindras. Kravet på att värvning ska avse folk (dvs. fler än en person) utgör mot den bakgrunden ett hinder mot att tillämpa bestämmelsen på handlingar som kan anses straff- värda. Således föreslås att straffansvaret för olovlig värvning utvidgas till att omfatta gärningar som riktar sig mot enstaka personer. Där- emot finns inte skäl att utsträcka straffansvaret till gärningar som i sin helhet begås utanför . Det föreslås också en modern- isering av bestämmelsen. Tillträde till Pekingprotokollet och Pekingkonventionen är part till konventionen för bekämpande av olaga besittningstagande av luftfartyg, benämnd Haagkonvent- ionen, och konventionen om bekämpande av brott mot den civila luftfartens säkerhet, benämnd Montrealkonventionen. I samband med ratificeringen av dessa konventioner infördes särskilda straff- bestämmelser om kapning av luftfartyg och sjö- och luftfarts- sabotage i 13 kap. 5 a § . Med anledning av ett tilläggs- protokoll till Montrealkonventionen infördes också en bestämmelse om flygplatssabotage i 5 b § i samma kapitel. Vid en diplomatkonferens i antogs ändringar av de båda konventionerna med tilläggsprotokoll. Ändringarna av Haag- konventionen antogs i form av ett tilläggsprotokoll till konventionen, benämnt Pekingprotokollet, och ändringarna i Montrealkonvent- ionen med dess tilläggsprotokoll antogs i form av en konsoliderad ny konvention, benämnd Pekingkonventionen. har inte undertecknat instrumenten och de har inte trätt ikraft . Pekinginstrumenten tillkom till följd av händelserna i och syftar till att förstärka skyddet för den civila luftfarten. De har sin förebild i och stora likheter med protokoll till konventionen för bekämpande av brott mot sjöfartens säkerhet, benämnt protokollet till , och protokoll till protokollet om bekämpande av brott mot säkerheten för fasta plattformar belägna på kontinental- sockeln, benämnt protokollet till plattformsprotokollet. Även dessa instrument har sitt ursprung i det ökade behovet av skydd på sjöfartens område som uppkom efter händelserna i . har tillträtt dessa instrument (prop. 2013/14:212). Pekingprotokollet innebär bl.a. att det ska utgöra brott att genom användande av tekniska hjälpmedel bemäktiga sig eller ingripa i manövreringen av ett luftfartyg, dvs. kapa ett luftfartyg t.ex. genom Även Pekingkonventionen innebär en utvidgning av brottskatalogen i förhållande till den tidigare gällande Montreal- konventionen. Det ska bl.a. utgöra brott att använda luftfartyg som brottsverktyg eller att ombord på luftfartyg transportera vissa vapen, däribland biologiska eller kemiska vapen eller kärnvapen. föreslås tillträda de båda instrumenten. För tillträde till Pekingprotokollet krävs en utvidgning av straffansvaret för kap- ning i 13 kap. 5 a § första stycket . Således föreslås att även den som genom användande av tekniska hjälpmedel bemäktigar sig eller ingriper i manövreringen av ett luftfartyg ska kunna dömas för detta brott. I dessa fall krävs inte att något olaga tvång före- kommit. Ett tillträde till Pekingkonventionen bedöms däremot inte kräva några lagändringar då svensk lagstiftning kan anses motsvara de krav som uppställs i konventionen. The Inquiry’s overall task has been to analyse whether the criminal law regulatory framework needs to be strengthened so as to more effectively prevent and hinder individuals from travelling from to take part in armed conflict for a terrorist organisation. The remit thus included determining which legislative amendments are needed for to live up to the requirements on criminal law regulations set forth in Resolution (2014), which includes a focus on ‘foreign terrorist fighters’ (ToR 2014:155), and, through supplementary terms of reference (ToR 2015:61), analysing the need for further criminalisation to prevent and hinder individuals from taking part in armed conflict abroad in the context of a terrorist organisation. The first part of the remit was reported in an interim report on 17 2015 (SOU 2015:63). The Inquiry’s remit to take a position on whether ’s criminal law regulations to prevent and suppress the financing of terrorism meet the requirements of the Financial Action Task Force was reported at the same time. The additional remit also included considering whether the penal provision on unlawful recruitment should be made clearer, extended or amended in some other way. Lastly, the Inquiry was instructed to determine whether should accede to the Convention and Protocol. The remit also included the question of accession to the Additional Protocol to on the Prevention of Terrorism. However, this question will be reported at the same time as the additional remit that the Government intends to decide on is reported. A new penal provision on participation in combat-related activities in armed conflict abroad in support of a terrorist organisation At present there is a certain area of impunity Many different types of acts can lead to a person being regarded as taking part in armed conflict. Apart from concrete hostilities aimed at combating the other party, and preparations of such acts, a person who promotes or contributes to a terrorist organisation’s general ability to take part in armed conflict is, within the framework of this remit, also regarded to contribute to the conflict so that the person is considered to be taking part in it. One example is individuals who are assigned tasks such as equipment servicing, transport, maintenance or cooking within the context of a terrorist organisation’s combat-related activities. The acts by which an individual may be considered to take part in armed conflict are already to a great extent punishable offences. In situations where participation occurs in a way that contravenes the rules of international humanitarian law (law of war) applicable in armed conflict, the acts may in many cases be punishable as war crimes. In some cases, conviction of crimes against humanity or genocide may even be relevant. Acts committed in the context of a terrorist organisation, i.e. an association of individuals who commit particularly serious crime or are guilty of an attempt, preparation, conspiracy or complicity to commit such crime, also constitute terrorist offences in some cases. With regard to all these offences, it is also possible to convict a person of an attempt, preparation, conspiracy and complicity, which means that forms of participation in armed conflict other than concrete hostilities are also punishable offences to a large extent. jurisdiction applies to the listed offences, which means a Swedish court can consider an act regardless of where or by whom it was committed. In addition, there are far-reaching opportunities for punishing a person who takes part in armed conflict for offences under the Swedish Penal Code, such as murder, assault, unlawful threats or vandalism. Nevertheless, there is still some scope for impunity. One example is participation in armed conflict involving a person who prepares combat measures in a way that does not constitute preparation to commit a criminal offence under Chapter 23 of the Swedish Penal Code. Likewise, acts that are not related to concrete combat measures, but that may be considered to contribute to or promote a terrorist organisation’s opportunities and general ability to take part in armed conflict, may be free from punishment. In these cases, when it concerns a type of general support to the activities of a certain association, there may be limited opportunity to convict for complicity under Chapter 23 of the Swedish Penal Code. The need to extend the criminal area There are several arguments that speak against an extension of the criminal area. The first is that acts whereby a person may be considered to take part in armed conflict are already punishable offences to a great extent, and thus the area of impunity is extremely limited. In addition, acts not subject to penalty essentially do not contravene the rules of humanitarian law concerning warfare. Therefore, within this framework, they can, in some sense, be considered permissible. Humanitarian law was designed for and adapted to the specific circumstances that prevail in armed conflict and expresses the balancing of interests that must be made between military necessity on one side and humanity on the other. The regulatory framework should therefore be a basis, also under Swedish law, for examining whether or not acts committed in armed conflict are to be considered contrary to the law. Criminalising acts that can be viewed as permissible in humanitarian law may lead to lack of respect for this regulatory framework. It may be difficult for parties to see the benefits of following the rules if the acts are punished at national level anyway. It may also counteract opportunities for peace negotiations, particularly in non-inter- national armed conflicts. Further, there is a risk that criminalising various forms of support activities may conflict with work that humanitarian aid organisations carry out in conflict areas where terrorist organisations operate. This may concern, for example, initiatives in the form of training in the rules of humanitarian law, care or humanitarian aid to civilians residing in areas controlled by, or where the population exhibits loyalty to, a terrorist organisation. Finally, it is questionable to what extent it will be possible, in practice, to investigate and prosecute acts that could be relevant in the event of an extension of the criminal area. The acts are committed abroad under the kind of special circumstances that prevail when an armed conflict is in progress. Legal aid possibilities are extremely limited in these cases and opportunities for Swedish criminal investigation authorities to investigate crimes on site are, of course, limited by the security situation in the country where the offences were committed. Criminal investigation can therefore be expected to be both complicated and very resource-intensive. At the same time, the area of impunity contains acts that can be considered reprehensible on the grounds that they are being committed as part of a terrorist organisation’s participation in armed conflict. Through acts that qualify it as a terrorist organisation, such an association has already displayed a lack of respect for humanitarian law in general and its prohibition against terrorism (prohibition against attacks on civilians) in particular. Acts that in any respect assist such an organisation’s opportunities for criminal activities in armed conflict increase the risk of a civilian population being attacked and caused harm and suffering. Likewise, there is increased risk of individuals who participate in the organisation’s combat-related activities gaining greater combat ability and a lower threshold for the use of violence. The environment with which individuals under these circumstances come in contact also often represents an influence that can lead to violent extremism or radicalisation. Overall, individuals who take part in armed conflict in support of a terrorist organisation run an increased risk of developing a greater willingness and ability to commit offences both in the conflict area and in countries to which they may return or . Although strong grounds for not extending criminalisation exist, there are nevertheless acts in the area of impunity that are reprehensible by contributing to the terrorist organisation’s ability to commit serious crime. In light of this, and as it is important to comprehensively highlight and analyse the issue in the continued preparation, proposals are presented on how the criminal area could be extended. A new penal provision is proposed concerning participation in combat-related activities in armed conflict abroad in support of a terrorist organisation The introduction of a new penal provision is proposed in the Act on Criminal Responsibility for Public Provocation, Recruitment and Training concerning Terrorist and other Particularly Serious Crimes (2010:299). Under the provision, a person who, by participating in combat-related activities in armed conflict abroad in a way that does not consist of or pastoral care, contributes, facilitates or is otherwise complicit in enabling the participation in a conflict by an association of persons that commits particularly serious crime or is guilty of an attempt, preparation, conspiracy or complicity to such offences, can be convicted of a crime. This will make it a punishable offence to take measures of a preparatory nature that contribute in a non-negligible way to a terrorist organisation’s opportunities to take part, through hostilities, in armed conflict abroad beyond what already constitutes an attempt, preparation or complicity under Chapter 23 of the Swedish Penal Code. In addition, it will be a punishable offence to strengthen, contribute to or in a general promote a terrorist organisation’s general combat capabilities or combat- related activities. Criminal liability does not require that the act can be connected to a concrete criminal act, such as an attack on civilians. To this end, the Inquiry proposes that criminal liability include promotion of a terrorist organisation’s criminal activities during armed conflict rather than concrete criminal acts. However, this is on condition that the act can be regarded as constituting a natural part of the organisation’s combat-related activities. It also includes acts of a more supportive character, such as maintenance, transport, equipment servicing and cooking, provided that there is a functional connection to the organisation’s participation in armed conflict through hostilities. Acts defined as or pastoral care will be exempt from criminal liability. Other exemptions are acts that contribute to, facilitate or otherwise constitute complicity in an association’s participation in armed conflict in a way that does not contravene the rules of humanitarian law concerning warfare. The proposed scale of penalties is imprisonment for at most two years. Under the proposal, it will be possible to prosecute the offence without a requirement of dual criminality, if the offence is committed by a Swedish citizen or a person residing here. An extension of criminal liability concerning for terrorist purposes, financing of such and recruitment for particularly serious crime The proposed criminal liability for participation in combat-related activities in armed conflict for a terrorist organisation only covers acts carried out abroad. Thus, in most cases, persons who can be prosecuted for this offence will have travelled from to the country where the act is carried out. If there are reports, even before a person leaves the country, that he or she intends to take part in armed conflict abroad in a punishable way, and the person has taken steps for the purpose of realising this intent by embarking on a journey, it should be possible for Swedish authorities to take action against the person already here in . The Inquiry therefore proposes that criminal liability for terrorist , incorporated in Section 5b of the Act on Criminal Responsibility for Public Provocation, Recruitment and Training concerning Terrorist and other Particularly Serious Crimes as a result of Resolution (2014), be extended to also include a person who or embarks on a journey to a country other than the one where he or she is a citizen, with the intent of participating in combat-related activities in armed conflict abroad in a way that is proposed to be a punishable offence. The Inquiry also proposes that financing such be made a punishable offence, as is the case for financing of other carried out for terrorist purposes. Today, these offences carry a maximum sentence of imprisonment for two years. The Inquiry proposes that this scale of penalties also apply to the proposed extension. The Inquiry also proposes that criminal liability for recruitment to particularly serious crime in Section 4 of the Act on Criminal Responsibility for Public Provocation, Recruitment and Training concerning Terrorist and other Particularly Serious Crimes be extended to include persons who seek to induce another person to participation in armed conflict abroad in a way that is proposed to constitute an offence. For obvious reasons, recruit- ment to particularly serious crime takes place a certain period of time before the offence is committed. For this reason, it can be difficult at this point in time to identify whether recruitment concerns complicity in particularly serious crime that currently constitutes an offence, or the type of participation in armed conflict that is proposed to be a punishable offence. In the latter case, recruitment can also be considered to increase the risk of serious crime (e.g. war crimes, crime against humanity, genocide or terrorist threats) being committed. Extended criminal liability may also be an important step in checking the inflow of individuals to terrorist organisations participating in armed conflict. It is not uncommon for a person who chooses to join such an organisation to have been encouraged by others in this act, for example by persons who have taken part in armed conflict in this way themselves. Today, recruitment can lead to a sentence of imprisonment for a maximum of two years or, for a gross offence, imprisonment for a minimum of six months and a maximum of six years. The Inquiry proposes that the same apply to the proposed extension of the offence of recruitment. Greater scope for secret coercive measures The report contains a proposal for a new penal provision concerning participation in combat-related activities in armed conflict abroad in support of a terrorist organisation. Further, an extension of criminal liability concerning for terrorist purposes, financing of such and recruitment for particularly serious crime is proposed. The ultimate aim of the proposed criminalisation is to prevent terrorist offences or other particularly serious crime from taking place. The offences will thereby in most cases lie within the ’s sphere of responsibility and may fall into the category of crime that is a particular threat to society that can threaten critical public functions. There are obvious similarities with the offences for which there is currently scope for using secret coercive measures within the framework of preliminary investigations, although the scale of penalties does not provide for Possibilities to resort to secret coercive measures should be the same for the criminal offences being proposed. It is therefore proposed that secret interception and surveillance of electronic communications and camera sur- veillance should be allowed to be used for preliminary investigations for all such criminal offences. The exemption from duty of noti- fication in Chapter 27, Section 33 of the Swedish Code of Judicial Procedure should also apply. For the proposed extension of criminal liability concerning recruitment for particularly serious crime it is further proposed, if it is considered to be a gross offence, that it should be possible to use, as set forth in the Act on Measures to Prevent Certain Particularly Serious Crimes (2007:979), secret coercive measures for preventive purposes even if a preliminary investigation has not been opened. Extension of criminal liability for unlawful recruitment Under Chapter 19, Section 12 of the Swedish Penal Code, criminal liability for unlawful recruitment requires that someone in recruits people, without government permission, for foreign military service or other comparable service. The requirement that recruit- ment must target ‘people’ means that criminal liability does not cover acts in which only one person is recruited. Originally, the provision targeted more extensive recruitment activities and was intended to maintain supply in of personnel suitable for warfare. For natural reasons, activities that can be likened to recruitment look different today. Armed conflicts to which individuals are recruited are essentially of a non-inter- national nature, meaning that they take place between a state and one or several armed groups or between armed groups, but not between states. Recruitment largely concerns military service carried out in an armed group, and not on behalf of a foreign power (state). There are also instances where one or more of the armed groups to which individuals are recruited can be considered to constitute terrorist organisations, i.e. an association of persons committing particularly serious crime or guilty of an attempt, preparation, conspiracy or complicity to such offences. One such example is the violent Islamic group Daesh that takes part in armed conflict in and . Recruitment is also carried out through other channels than was the case when the provision came into being, and focuses in most cases on individuals. In these cases, recruitment, if permitted, also risks affecting ’s foreign policy relations. Many of the persons who take part, for instance through hostilities, in the ongoing armed conflict in and have arrived from other countries, including , and it is essential that recruitment activities that may precede such military service are prevented as far as possible. Against this backdrop, the requirement that recruitment must target ‘people’ (i.e. more than one person) constitutes an impediment to applying the provision to acts that may currently be considered reprehensible. The Inquiry thus proposes that criminal liability for unlawful recruitment be extended to include acts that target individuals. However, there is no reason to extend criminal liability to acts committed entirely outside . The Inquiry also proposes that the provision be modernised. Accession to the Convention and Protocol Since the 1970s, has been a party to the Convention for the Suppression of Unlawful Seizure of Aircraft, referred to as the Hague Convention, and the Convention for the Suppression of Unlawful Acts Against the Safety of , referred to as the Convention. In connection with the ratification of these conventions, special penalty provisions were introduced in Chapter 13, Section 5a of the Swedish Penal Code concerning hijacking of aircraft and and air traffic sabotage. In connection with an additional protocol to the Convention in 1990, a provision on airport sabotage was also added in Section 5 b of the same chapter. Amendments to both conventions and their additional protocols were adopted at a diplomatic conference in in 2010. Amendments to the Hague Convention were adopted in the form of a protocol supplementing the Convention, referred to as the Protocol, and amendments to the Convention and its additional protocol were adopted in the form of a new consolidated convention, referred to as the Convention. has not signed the instruments and they have not yet come into force. The instruments were established following the events in on and aim to reinforce protection of civilian .