URU, Alm.del - 2019-20 - Bilag 95: Orientering om henvendelse til udenrigsministeren modtaget fra FN’s Specialrapportør for udenretlige, summariske eller vilkårlige henrettelser samt Regeringens svar herpå

Udenrigsudvalget 2019-20
URU Alm.del Bilag 95
Offentligt

Response by the Government of the Kingdom of Denmark to communication of the Special

Rapporteur on extrajudicial, summary or arbitrary executions, reference AL DNK 3/2019

In response to the communication, the Danish Government has the honour to provide the following

information.

The Danish Government is of the opinion that foreign terrorist fighters should be prosecuted where

they have committed their crimes. The Danish Government would welcome options for local

prosecution that respect the fundamental principles concerning legal guarantees and death penalty. It is

a longstanding policy of Danish Governments to oppose the death penalty in all circumstances as a

matter of principle. The Danish Government and the EU both raise this issue regularly in bilateral as

well as in multilateral discussions.

1. Please provide any information and/or comment(s) you may have on the above-mentioned

allegations.

At the outset, the Danish Government wishes to reiterate its principled legal position that a State

Party’s obligations under the International Covenant on Civil and Political Rights is limited through

Article 2 to “individuals within its territory and subject to its jurisdiction”. The Danish Government

notes that individuals situated in third countries in e.g. refugee camps or held in detention in general do

not fall under the jurisdiction of Denmark in the sense of ICCPR article 2.

Also, the Danish Government notes that consular assistance under the Vienna Convention on

Consular Relations (VCCR) is a right of the sending State under international law, and not a duty under

international law towards its own nationals. It falls under the discretion of a State whether it wishes to

extend consular services to its own nationals.

2. Please provide detailed information on the legislation reportedly adopted by Denmark

allowing for the stripping of the Danish nationality in cases of dual-citizens accused of having

joined armed groups in Syria or Iraq. Please explain how is that consistent with Denmark’s

international obligations, particularly in terms of respect for the right to life and the principle

of non-discrimination.

Please see the attached Appendix A for the Danish Government’s response to question two.

3. Please provide detailed information about the procedure envisaged with regard to the

implementation of that legislation.

Please see the attached Appendix A for the Danish Government’s response to question three.

4. Please provide detailed information about measures thus far taken by Denmark to provide

consular assistance to Danish nationals in Iraq, accused of membership to ISIL, or other

similar groups, and please explain how would they be consistent with Denmark’s international

human rights obligations to protect the right to life and the principle of non-discrimination are

concerned.

URU, Alm.del - 2019-20 - Bilag 95: Orientering om henvendelse til udenrigsministeren modtaget fra FN’s Specialrapportør for udenretlige, summariske eller vilkårlige henrettelser samt Regeringens svar herpå

In order to ensure the best possible conditions for the handling of consular cases and due to national

security grounds, the Danish Government cannot provide details regarding consular assistance in

specific cases of Danish nationals accused of membership to ISIL, or other similar groups in other

countries.

Generally, based on the Act on the Foreign Service, the Danish Foreign Service provides consular

assistance to a detained foreign terrorist fighter on an equal footing with other Danish citizens.

However, the possibility of providing consular assistance may be limited due to security, logistical and

practical concerns. This applies to all cases concerning citizens in need of consular assistance.

The Danish Government has established a Joint Forum consisting of relevant Danish authorities,

including the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Immigration and

Integration. The Forum deals with the challenges relating to foreign terrorist fighters who have

travelled from Denmark. The Forum exchanges information on cases on an individual basis, taking into

consideration aspects related to security, humanitarian issues and possible legal obligations of Denmark.

In cases regarding particularly vulnerable children, such as orphaned minors or children that suffer

from health-threatening conditions, which cannot be treated locally, evacuation of a child may be found

to be the best solution.

Information related to cases which are dealt with by the Joint Forum are subject to confidentiality.

5. Please provide detailed information about the measures announced by the Government that

Danish ISIL fighters would have no right to obtain consular assistance, how these measures

will be practically implemented, and on the basis of what criteria.

On 12 December 2019, the Danish Government introduced a Bill to Parliament with the aim of

enabling the Danish Foreign Service to refuse or limit its consular assistance to foreign terrorist

fighters.

The Bill introduces a new provision to the current Act on the Foreign Service stipulating that the

Foreign Service can refuse or limit its consular assistance to a person if there is reason to believe that

the person concerned has stayed in a conflict zone or has participated in activities abroad, which may

pose or increase a threat to national security

of Denmark or other states. A “conflict zone” is defined in

Danish criminal law.

More specifically the new provision will enable the Foreign Service to either refuse or limit its consular

assistance to a person, if:

a person has been in a conflict zone without prior permission or creditable purpose,

- a person has been denied a (renewal of) passport by Danish authorities, e.g. if there is reason to

believe that the person concerned intends to travel to a conflict zone to join a terrorist movement,

- a person has been convicted or detained in custody in absentia (by a Danish court) for

i.a.

acts of

terrorism or treason,

- information from

i.a.

the Danish Security and Intelligence Agency, or other relevant Danish or

foreign authorities, gives reason to believe that a person meets the criteria.

In cases concerning foreign terrorist fighters, the Danish Foreign Service will conduct a comprehensive

assessment of the specific case in question to see if the person in question meets the criteria set out in

the provision. When conducting this assessment, the Danish Foreign Service will also take into

consideration if there are specific concerns calling for issuing consular assistance such as humanitarian

aspects.

The current Act specifies that the Danish Foreign Service provides consular assistance to Danish

citizens, foreigners with a fixed abode in Denmark, non-represented Nordic and non-represented EU

citizens in third countries. The Bill applies to the entire group.

The Danish Foreign Service will conduct its case-by-case assessment on a non-discriminatory basis and

in line with national legislation.

In accordance with the Bill, the Danish Foreign Service will be able to refuse or limit its consular

assistance, such as prison visits or participation in court hearings, to foreign terrorist fighters. The

Foreign Service will, however, still continue to provide assistance covered by other legislation, such as

issuing of passports or providing assistance in extradition cases.

Children of foreign terrorist fighters are exempt from the Bill. Hence, under-aged children of foreign

terrorist fighters will not be subject to the limitations in consular assistance. However, in exceptional

circumstances, the bill can apply to a person under the age of 18 if there is reason to believe that the

person concerned meets the criteria. This could be the case if there is clear evidence that a person

under the age of 18 has received training in the use of weapons. The Danish Foreign Service will

conduct a comprehensive assessment of the case in question to see if the person under the age of 18

meets the criteria set out in the provision.

It is the assessment of the Danish Government that the Bill is consistent with Denmark’s

international

obligations.

6. Please provide information, disaggregated to the extent possible by age and sex or gender,

on Danish nationals currently known to be in Iraq and/or Syria. Please explain whether they

are held in situations of deprivation of liberty, or are awaiting trial, and if so for what charges,

or have been sentenced to death. Please indicate whether these information were ever officially

sought from the relevant authorities in Iraq and/or Syria.

The Danish Government emphasizes that the below figures are indicative and cannot be confirmed

with certainty as they are based on intelligence from areas of armed conflict.

The Danish Security and Intelligence Service assesses that 34 persons (above the age of 18), out of the

total of at least 159 persons who have travelled from Denmark and who are believed to have stayed

with militant Islamist groups in Syria and Iraq, continue to be in the conflict zone or surrounding

countries. Out of these 34 persons, 21 are Danish nationals of which 12 are detained or imprisoned.

The Danish Security and Intelligence Service assesses that approximately 40 children (under the age of

18) of Danish nationals are currently present in the conflict zone, while 10 children of persons, who

previously had a permanent residence in Denmark, are in the conflict zone. Of the approximately 50

children, approximately 30 children are in Northern Syria.

For further information, reference is made to the response of the Danish Government to question 4.

7. Please explain whether consular protection was thus far extended to any national of

Denmark allegedly associated to ISIL, or other similar groups in Iraq and/or Syria, and

provide information on the steps taken to ensure full respect of their human rights. If no action

was undertaken, please explain why and how this was consistent with Denmark’s international

human rights obligations. Please explain whether Denmark has ever tried to seek the

extradition of Danish nationals allegedly associated to ISIL or other similar groups in Iraq

and/or Syria, or whether any step was ever taken to facilitate their repatriation.

The Danish Government has conducted a medical evacuation from Syria of a seriously injured boy

with Danish nationality in June 2019 and evacuated an orphaned minor of 11 months of age in

November 2019. Two orphaned children with French and Danish backgrounds have been evacuated

from Syria to France in June 2019. The evacuation of the two orphaned children involved cooperation

between relevant French and Danish authorities.

For further information, reference is made to the response of the Danish Government to question 4.

8. Please provide information as to whether your Excellency’s Government may be aware of an

alleged agreement or practice, aiming at facilitating the transfer of foreign nationals, held in

Northern Syria, to Iraq.

The Danish Government is not aware of an alleged agreement or practice, aiming at facilitating the

transfer of foreign nationals, held in Northern Syria, to Iraq.

9. Please indicate whether Your Excellency’s Government has provided the families of Danish

nationals facing trial or execution, or sentenced to death for terrorism in Iraq or Syria, with any

information related to their conditions of detention, the trial or the execution.

If a Danish national faces trial or execution abroad, the Danish Government may, upon request of the

person concerned, provide information to a Danish national’s next of kin e.g.

regarding the conditions

of detention, the trial or execution.

Please refer to the response of the Danish Government to question 4 regarding consular assistance to

Danish nationals accused of membership to ISIL or other similar groups.

10. Please explain what is the position of Your Excellency’s

Government on the administration

and functioning of the justice system in Iraq, particularly in terrorism cases.

In relation to the administration and the functioning of the justice system in Iraq, Denmark shares the

concerns raised by United Nations Assistance Mission for Iraq, the Office of the United Nations High

Commissioner for Human Rights and NGOs regarding the lack of due process and fair trial guarantees

affecting the Iraqi criminal justice system. During the Universal Periodic Review of Iraq on 11

November 2019, Denmark emphasized the importance of ensuring the rule of law and due process in

all trials. Denmark recommended the Government of Iraq to reintroduce a moratorium on the use of

the death penalty as a first step towards its abolition, as well as to ratify the Optional Protocol of the

Convention Against Torture. These matters are also raised in the dialogue between the EU and Iraq in

the framework of the EU-Iraq Partnership and Cooperation Agreement from 4 July 2019. Within the

framework

of the Global Coalition against Da’esh, Denmark supports the Iraqi authorities in

addressing the continued threat from Da’esh. Denmark, with the EU, also supports the Iraqi authorities

in strengthening the justice sector, the respect for the rule of law, due process, and for human rights, as

noted in the EU Council conclusions on Iraq from 15 July 2019. Through Danish support to both the

United Nations Development Programme and the EU Advisory Mission to Iraq, Denmark also

supports civilian security sector reform. Denmark is also planning to fund the United Nations

Investigative Team to Promote Accountability for Crimes Committed by Da’esh to ensure

accountability with due process and respect for human rights for crimes committed by Da’esh.

11. Please

explain what is the position of Your Excellency’s Government on the possibility of

setting up an ad hoc or hybrid international tribunal to prosecute alleged ISIL fighters for their

crimes.

It is the position of the Danish Government that foreign terrorist fighters should be prosecuted where

their actions have been committed. Whether it is by a national court in the region or e.g. a hybrid

international tribunal is not decisive. The Danish Government has, however, intensified its efforts,

together with other countries, to strengthen the possibility of prosecution by a local court in the

region.