Algeria, Morocco, Saudi Arabia: Response to Terrorism September 2015 This report is provided for reference purposes only. It does not constitute legal advice and does not represent the official opinion of the United States Government. The information provided reflects research undertaken as of the date of writing. It has not been updated. Algeria, Morocco, and Saudi Arabia: Responses to Terrorism Algeria, Morocco, and Saudi Arabia: Responses to Terrorism SUMMARY Acts of terrorism committed on September 11, 2001, and subsequent international actions caused many countries, including Algeria, Morocco, and Saudi Arabia, to enhance their counterterrorism policies through amending existing or enacting new laws related to the criminal justice system. All three countries have adopted broad definitions of terrorism, raising concerns that they could include acts of political dissent within the ambit of acts of terrorism. At various points they have also adopted criminal procedure provisions that lowered certain restrictions for investigations of crimes labeled as crimes of terrorism, made the financing of terrorism a separate offense, and required all suspicious financial transactions to be subject to scrutiny by special financial units before they are referred to the competent criminal authorities. In addition, Morocco and Saudi Arabia recognize that there is a religious component to the acts of terrorism committed by many terrorist organizations. They proclaim to have established special programs to seek to address this element of terrorism by means other than the criminal justice system. I. Introduction Following the September 11, 2001, attacks (9/11 attacks) perpetrated against the United States by al-Qaeda claiming to act in accordance with Islamic religious teachings and beliefs, many countries adopted or enhanced the already existing measures relating to combatting terrorism. On September 28, 2001, shortly after the 9/11 attacks, the UN Security Council approved Resolution 13731 under chapter VII of the Charter of the United Nations. This Resolution sets up a general framework to combat terrorism, concentrating mainly on how to prevent and suppress the financing of terrorism and on changing governmental attitudes and behaviors towards the growing threat of terrorism. This report provides information about the counterterrorism measures adopted by three countries of the Middle East and North Africa region whose populations are either entirely or nearly all Muslims: Saudi Arabia, Algeria, and Morocco. 1 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001), http://www.un.org/en/sc/ctc/specialmeetings/2012/ docs/United%20Nations%20Security%20Council%20Resolution%201373%20%282001%29.pdf. The Law Library of Congress 1 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism II. “Terrorism” Defined UN Security Council Resolution 1373 calls on and requires all Member States to take necessary measures aimed at  Preventing and suppressing the financing of terrorist activities by criminalizing all acts tending to provide for or facilitate such financing;  Refraining from providing any assistance or support, passive or active, to persons or entities involved in terrorist activities; and  Enhancing cooperation among states through the exchange of information and other measures to control and impede the movement of terrorists across international boundaries. This Resolution does not provide a definition of what constitutes an act of terrorism, apparently leaving this task to each country to decide on its own. For example, United States federal law defines “terrorism” as any crime that appears to be intended to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.”2 In October 2012, UN delegates from various countries called for increased international cooperation to “define terrorism and conclude a convention on the topic.”3 In Algeria, article 87bis of the Algerian Penal Code defines a “terrorist act” as any act targeting state security and national unity, territorial integrity, and the stability and normal functioning of institutions by any action whose objective is to  Spread terror among the population and create a climate of insecurity through moral or physical assault on people, through exposing their lives, freedom, or security to danger, or through damaging their properties;  Obstruct traffic or freedom of movement on the roads and gather or sit in in public spaces;  Assault the symbols of the Nation and the Republic and unearth or desecrate graves;  Assault the means of transportation and transport, the public and private properties, and possess or occupy them without legal justification;  Assault the environment or introduce into the atmosphere, into the earth or on its face, or into the waters, including territorial waters, a substance that would expose the health of humans or of animals, or the natural environment to danger;  Obstruct the work of public authorities, the freedom of worship, the exercise of public liberties, or the functioning of the establishments assisting public services; 2 18 U.S.C. § 2331, http://www.law.cornell.edu/uscode/text/18/2331. See also Definitions of Terrorism in the U.S. Code, FEDERAL BUREAU OF INVESTIGATION, http://www.fbi.gov/about-us/investigate/terrorism/terrorism-definition (last visited Sept. 18, 2014). 3 Press Release, U.N. General Assembly, Legal Committee Urges Conclusion of Draft Comprehensive Convention on International Terrorism, GA/L/3433 (Oct. 8, 2012), http://www.un.org/News/Press/docs/2012/gal3433.doc.htm. The Law Library of Congress 2 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism  Obstruct the functioning of public institutions, assault the lives or properties of their representatives, or impede the implementation of laws and regulations.4 In Morocco, the determining factor in the definition of a “terrorist act” is whether there is an intention to seriously undermine public order. Article 218bis of the Penal Code stipulates that [t]he following crimes shall constitute terrorist acts if they are intentionally related to individual or collective enterprise having the objective of gravely undermining the public order through intimidation, terror, or violence.5 In Saudi Arabia, article 1(a) of the Law Concerning Offenses of Terrorism and its Financing, issued on December 27, 2013, defines a terrorist crime as [a]ny act undertaken by the offender directly or indirectly in pursuance of an individual or collective criminal enterprise intended to disturb the public order, destabilize the security of society or the stability of the state, expose its national unity to danger, obstruct the implementation of the organic law or some of its provisions, harm the reputation of the state or its standing, endanger any of the state facilities or its natural resources, force any of its authorities to do or abstain from doing something, or threaten to carry out actions leading to any of the aforementioned objectives or encourage 6 their accomplishment. The above definitions in the laws of Saudi Arabia, Algeria, and Morocco, while different, may each be seen as being so broad as to possibly include in the definition of terrorism all activities targeting a government or the political regime, even when such activities may involve legitimate political dissent or protest.7 For example, a July 2014 article by Amnesty International reports that the Specialized Criminal Court in Jeddah “invoked article 21 of Saudi Arabia’s repressive new anti-terrorism law” to convict and sentence a prominent Saudi Arabian lawyer and human rights defender, Waleed Abu al-Khair, to fifteen years in prison.8 The article quotes the Deputy Director of the Middle East and North Africa Programme at Amnesty International as saying: Waleed Abu al-Khair’s conviction on charges relating to national security is entirely unjustified and provides alarming evidence that the Kingdom’s new anti-terrorism law is going to be used to repress peaceful political dissent.9 4 Penal Code, art. 87bis, Order No. 66-156 of June 8, 1966, http://www.droit.mjustice.dz/legisl_nouveau/code_ penal_2010/ar/index.html?i=168 (in Arabic; translated by author, I.S.) (Alg.). 5 Penal Code, art. 218bis, Dahir 1-59-413 of 1962, http://adala.justice.gov.ma/production/legislation/ ar/Nouveautes/يئانجلا20%نوناقلا.pdf (in Arabic; translated by author, I.S.) (Morocco). 6 Law Concerning Offenses of Terrorism and its Financing art. 1(a), Royal Decree No. M/16 of 1935 Hijri, corresponding to December 27, 2013, http://boe.gov.sa/ViewSystemDetails.aspx?lang=ar&SystemID= 327&VersionID=305 (in Arabic; translated by author, I.S.) (Saudi Arabia). 7 See, e.g., Morocco: Stop Using ‘Terrorism’ as a Pretext to Imprison Journalists, AMNESTY INTERNATIONAL (May 20, 2014), http://www.amnesty.org/en/news/morocco-stop-using-terrorism-pretext-imprison-journalists-2014-05-20; HUMAN RIGHTS WATCH, WORLD REPORT 2009: ALGERIA (Jan. 2009), http://www.hrw.org/world-report- 2009/algeria. 8 New Anti-terror Law Used to Imprison Saudi Arabian Human Rights Activist, AMNESTY INTERNATIONAL (July 7, 2014), http://www.amnesty.org/en/news/new-anti-terror-law-used-imprison-saudi-arabian-human-rights-activist- 2014-07-07. 9 Id. The Law Library of Congress 3 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism III. Special Investigative Tools As a part of strengthening their legal measures to counter terrorism, Algeria, Morocco, and Saudi Arabia have amended their existing laws or enacted new ones to give investigators, security forces, and the courts special powers when the criminal offenses are classified as terrorist crimes. The most significant of these changes are explained below. A. Algeria Algeria’s criminal procedure law imposes a number of restrictions on the criminal investigative process with regard to carrying out searches and time frames for detention. Under the law, investigators are prohibited from entering personal residences without a search warrant obtained from the competent judicial authority in the geographic area where the residence is located. Furthermore, no search is allowed to take place before 5:00 a.m. or after 8:00 p.m., and the presence of the accused or his representative during the search is required.10 The law was amended in 1982 to lift these restrictions when the offense being investigated is classified as a terrorist act. This means that, where a terrorist crime is alleged, the search warrant does not need to be obtained from the local authority, with search warrants in relation to such offenses therefore executable anywhere in the nation and not limited to the geographic competency of the issuer;11 a search can take place any time during day or night;12 and the presence of the accused or his representative is not a necessity during the search.13 With respect to temporary detention, an accused can be taken into custody during the investigative process under certain conditions for a period not to exceed forty-eight hours; but if the crime is classified as a terrorist act this period can be extended by up to twelve days.14 Under Algerian law, pretrial detention is allowed under certain strict conditions and limited to a period of four months, which can be renewed twice. However, when the offense is classified as a terrorist act the pretrial detention may be renewed five times and, if the crime is transnational in nature, as many terrorist acts are, the detention period may be renewed eleven times.15 10 Criminal Procedure Code, Order No. 155-66 of June 8, 1966, http://www.droit.mjustice.dz/portailarabe/legisl_ de_06_au08/code_proc_penale_modif_ar_06.pdf (in Arabic and French) (Alg.). 11 Id. art. 44. 12 Id. art. 47. 13 Id, art. 45. 14 Id. art. 51. 15 Id. art. 125bis. The Law Library of Congress 4 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism B. Morocco As of 2011, Morocco had made several amendments to its Criminal Procedure Code,16 which included granting investigators more powers when the crime being investigated is classified as a terrorist crime. The law now includes the following:  Investigators are authorized to seize any type of documents that may prove the commission of a crime by searching the residence of those who have possession of such documents. Normally, only the officer of the judicial police and specific other persons are allowed to see these documents before deciding whether to seize them or not. However, this restriction does not apply when the crime involved is a terrorist crime.17  Normally, searches of residences cannot be conducted before 6:00 a.m. or after 9:00 p.m. When the crime being investigated is a terrorist crime these restrictions do not apply if searches during these times are considered necessary.18  Investigators may detain any persons who could be helpful for the investigation for a period not to exceed forty-eight hours. In investigating terrorist crimes the period is ninety-six hours, renewable for the same period twice.19  Normally, entering and searching residences for the purpose of seizing evidence requires the explicit approval of the owner of the residence. If the evidence relates to a terrorist crime and the owner abstains from giving his approval the search can be conducted following a written order of the general prosecutor.20  Normally, only the investigative judge has the power to order the interception of telephonic and other means of communications. This power is now extended to the General Representative of the King when the matter relates to a terrorist crime.21 C. Saudi Arabia Saudi Arabia does not have a written, comprehensive penal code but asserts that it applies Sharia’ or Islamic law. In December 2001, in its first report to the Security Council Committee established pursuant to Resolution 1373 concerning counterterrorism, Saudi Arabia stipulated the following: In the Islamic Shariah, which the Kingdom applies and from which it derives its statutes, crimes of terrorism are included among the crimes of hirabah. The severest of penalties are applied to these crimes in the Islamic Shariah, as set forth in the Holy Koran [Koran 16 Criminal Procedure Code, Dahir 1-58-261 of 1959, as amended to Oct. 27, 2011, http://adala.justice.gov.ma/ production/legislation/ar/Nouveautes/ةيئانجلا20%ةرطسملا20%نوناق.pdf (in Arabic) (Morocco). 17 Id. art. 59. 18 Id. art. 62. 19 Id. art. 66. 20 Id. art. 79. 21 Id. art. 108. The Law Library of Congress 5 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism 5:33]. The crimes of hirabah include the killing and terrorization of innocent people, spreading evil on earth (al-ifsad fi al-ard), theft, looting and highway robbery.22 In its supplementary report, submitted to the Committee in July 2002, Saudi Arabia stipulated that financing of terrorism also falls into the crime of hirabah: For its statutes, the Kingdom of Saudi Arabia relies on Islamic law. The financing of terrorism falls into the category of “spreading evil on earth” (al-ifsad fi al-ard). This may incur the non-discretionary hadd penalty for hirabah (brigandage), which can sometimes mean the application of the death penalty.23 In December 2013, as referred to above, Saudi Arabia enacted the Law Concerning Crimes of Terrorism and its Financing. This Law gives the Minister of Interior the power to issue arrest warrants against those suspected of having committed terrorist crimes and to delegate this power as he sees fit according to guidelines he prescribes.24 Investigators may arrest and detain those accused of terrorist crimes for a period or periods not to exceed six months, renewable once for another six months. Any detention beyond the renewed period must be authorized by the Specialized Criminal Court.25 Apparently, the arrest warrants issued by the Minister of Interior are not among those subject to the supervision of the Specialized Criminal Court. Apart from the right of the accused to inform his relatives of his arrest, investigators may prohibit any communications with the accused for a period not to exceed ninety days. Any prohibition beyond the ninety days must be referred to the Specialized Criminal Court for authorization.26 This new law gives the Minister of Interior judicial powers in the investigative phase of the crimes of terrorism unique among the legal systems of other countries. Among such powers are those that allow the Minister or his designee to  Enter homes and offices at any time for the purpose of searching them and arresting persons accused of terrorist crimes;27  Monitor letters, messages, publications, parcels, and other means of communication, as well as telephone conversations, and confiscate or make copies thereof whether this is in relation to a crime that has already been committed or may be committed;28 and 22 Report of the Kingdom of Saudi Arabia Submitted Pursuant to Paragraph 6 of Security Council Resolution 1373 (2001) Concerning Counter-terrorism, at 5, U.N. Doc. S/2001/1294 (Dec. 26, 2001), http://www.un.org/en/sc/ctc/ resources/1373.html (scroll to Saudi Arabia). 23 Report of the Kingdom of Saudi Arabia in Response to the Comments Contained in the Letter Dated 18 April 2002 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-terrorism, at 4, U.N. Doc. S/2002/869 (July 10, 2002), http://www.un.org/en/sc/ctc/resources/ 1373.html (scroll to Saudi Arabia). 24 Law Concerning Offenses of Terrorism and its Financing art. 4 (Saudi Arabia). 25 Id. art. 5. 26 Id. art. 6. 27 Id. art. 16. The Law Library of Congress 6 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism  Urgently order the temporary seizure for a period of three months, renewable for a similar period or periods until the investigation is complete, property suspected of having been used in terrorist crimes.29 The Minister of the Interior also has the discretionary power to order the release of detainees who are accused of a terrorist offense or persons convicted of such crimes during the execution of their sentences.30 IV. Financing of Terrorism In accordance with the general principles of the criminal law in civil law jurisdictions, any person who assists in the commission of a crime, including by financing it, is normally considered a principal actor or participant in the crime he financed and is subject to the same penalty as those who personally commit the crime. In Algeria, for example, article 41 of the Penal Code states that actors of a crime include those who personally commit it and those who entice them to commit it through gifts (including certainly financing) or other means of enticements.31 In Morocco, article 129(1) of the Penal Code states that a participant in the commission of a crime includes anyone who encourages its commission through a gift.32 Article 130 provides that a participant in the commission of a crime must be subject to the punishment assigned to the crime. As mentioned above, Saudi Arabia does not have a comprehensive written penal code. With regard to the existence of legal provisions aimed at suppressing the financing of terrorism, the Saudi government stated in its second letter to the UN Security Council Committee established pursuant to Resolution 1373 that the financing of terrorism falls into the category of “spreading evil on earth” (al-ifsad fi al-ard), which may incur the nondiscretionary hadd penalty for hirabah.33 However, in response to more specific requirements to combat the financing of terrorism outlined in UN Resolution 1373, and in compliance with other UN decisions, the three countries have adopted specific legal provisions. In Algeria, the legislature made the financing of terrorism a separate crime independent from the terrorist act itself by providing in article 87bis(4) of the Penal Code that anyone who praises, encourages, or finances by any means acts of terrorism must be punished by five to ten years imprisonment and a fine of 100,000 to 500,000 Algerian dinars.34 28 Id. art. 17. 29 Id. art. 18. 30 Id. art. 24. 31 Penal Code art. 41 (Alg.). 32 Penal Code art. 129(1) (Morocco). 33 U.N. Doc. S/2002/869, supra note 23, at 5. 34 Penal Code art. 87bis (4) (Alg.). The Law Library of Congress 7 Algeria, Morocco, and Saudi Arabia: Responses to Terrorism In addition, in 2005, Algeria enacted a special law to prevent money laundering and financing of terrorism, which makes all suspicious financial transactions subject to scrutiny.35 Article 15 of this law requires that basically all financial and some other institutions refer to a special investigative unit, in the manner prescribed, any transactions suspected of involving the crime of financing of terrorism. If the special investigative unit finds reasons to believe that a crime was committed then it must refer its findings to the competent criminal legal authority.36 In 2011, Morocco added article 218(4) to its Penal Code, which makes the financing of terrorism a crime even if the act of terrorism itself did not take place. It stipulates that the following must be considered terrorist acts: The carrying out by any means, directly or indirectly, the offering, collection, or arranging the obtaining of funds, properties, or anything of value for the purpose of using them or with the knowledge that they will be used in full or in part to commit a terrorist act whether such act takes place or not.37 Morocco also has an anti-money-laundering law38 and a special administrative unit39 to monitor financial transactions that might involve money laundering or terrorism financing. This unit follows the global standard set up by the Financial Action Task Force (FATF) for anti-money laundering and combating the financing of terrorism (AML/CFT). One of the major tasks of this unit, pursuant to article 18 of the law, is to refer to the competent judicial authorities for investigation and prosecution any financial transactions suspected of being related to the financing of terrorism. In Saudi Arabia, article 1(a) of the 2013 Law Concerning Offenses of Terrorism and its Financing40 adopts for the offense of financing of terrorism the same definition adopted by the International Convention for the Suppression of the Financing of Terrorism.41 Saudi Arabia also enacted an Anti-Money Laundering Law in April 2012, and issued its implementing instructions.42 Pursuant to article 9 of this Law any suspicious financial transactions involving the financing of terrorism has to be referred to the special investigative 35 Law on the Prevention and Control of Money Laundering and Terrorist Financing, Law No. 05-01of 1425 Hijri, corresponding to 2005, http://www.droit.mjustice.dz/loi_prevent_lutte_blanchim_argent_financem_terrorisme.pdf (in Arabic and French) (Algeria). 36 Id. art. 16. 37 Penal Code art. 218(4) (Morocco). 38 Anti-Money-Laundering Law, Dahir 1-07-79 of 2007, http://www.marocdroit.com/-لاوملأا-لسغ-ةحفاكمب-قلعتملا-نوناقلا برغملاب_a64.html (in Arabic) (Morocco). 39 This unit was created pursuant to article 14 of the Anti-Money-Laundering Law by Ministerial Decree No. 2-08- 572 of 2008, BULLETIN OFFICIEL No. 5700 of Dec. 24, 2009. 40 Law Concerning Offenses of Terrorism and its Financing art. 1(a) (Saudi Arabia). 41 International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, 2178 U.N.T.S. 197, https://treaties.un.org/doc/db/Terrorism/english-18-11.pdf. 42 Anti-Money Laundering Law, Royal Decree M31 of 5/11/1433 Hijri, corresponding to Apr. 3, 2012 (Saudi Arabia). Both the Law and its Implementing Instructions are available on the website of the Saudi Arabia Anti- Money Laundering Committee, at http://www.sama.gov.sa/MoneyLaundry/DocLib1/ لسغ ةحفاكم ماظنل ةيذيفنتلا ةحئلالا لاوملأا.pdf (in Arabic). An English translation of the Law is available on the same site, at http://www.sama.gov. sa/sites/samaen/RulesRegulation/BankingSystem/Pages/anti_money_laundering_%28aml%29_law_ar_en.pdf. The Law Library of Congress 8