Case No. UKUT-00137-(IAC)

[ 2009] EWCA Civ 292 paragraph 34 , it was not suggested that acts of a military nature committed by an independence movement against military forces of a government were themselves acts contrary to the purposes and principles of the United Nation, as summarised by Lord Brown in JS at paragraph 27: “Nor, of course, as Stanley Burnton LJ noted in KJ ( Sri Lanka ), is military action against government forces to be regarded as a war crime”. 26. Bearing these points in mind, we turn to the evidence. 27. As regards the materials upon which the Secretary of State places reliance, these are largely speeches, sermons, commentaries etc. that the appellant has made between 2004 and 2014. The respondent has provided extracts from some of these and the appellant has provided entire translations rather than extracts. There are minor differences between the translations in places and to an extent explanations for this have been provided by the translators. This is a matter we shall come on to in due course. In addition the respondent places reliance on a document containing draft reasons for a recommendatio n by the O mbudsperson ’ s recommendation to the UN Security Council Committee reta ining the appellant on the Al-Q aeda sanctions list. She also place d reliance on a Wikipedia entry annexed to the first witness statement of Guy Higginson, which relates to Anwar Al-Awlaki. 28. Mr O’Connor structured his argument with regard to the material emanating from the appellant’s sermons, speeches, interview s etc. by reference to three categories. The first of these is praise for and glorification of the activities of lea ding Al-Q aeda terrorists. In an item posted on the internet on 20 July 2006 (all of the items were translated by the respondent in July 2015) the appellant listed several terrorist leaders including Mullah Omar, Osama bin Laden, Abu Al-Za r qawi and Shamil Basayev as “master s of the Ummah”. Referring to them cumulatively the appellant said “these heroes, who did not submit or falter when all the world was against them, knelt only to Allah, the Lord of the Worlds! They are truly masters!.” 29. In a YouTube interview posted on the internet on the day (2 May 2011) in which Osama bin Laden was killed, the appellant described bin Laden as “ a lion among the lions of Islam” and said that he was “an anthem in the hearts of the oppressed from Jakarta to the Hindu Kush, to Egypt and the villages and rural areas”. “ Ask these poor and oppressed people and they will be mourning Sheikh Osama bin Laden”. He also said that “ Sheikh Osama bin Laden was fighting forces of occupation. He did not kill civilians and did not say that. ” He also denied that he was glorying anything or extolling anything but said he was describing a reality. 30. On the same day the appellant issued a statement eulogising bin Laden, describing him as the “reviver of Islam” and the “lion of Islam”. 31. Two years after bin Laden’s death the appellant published a sermon in which among other things he referred to bin Laden as a “hero [who] went forth and stood in defence of his Ummah” and also repeatedly referred to him as a martyr. 32. 33. On 11 September 2012 the appellant posted a tribute to Abu Yahya Al-Libi, a senior Al-Q aeda official. In that the appellant r eferred to Al-Zawahiri as “the E mir of the Qaeda Al Ji had organisation, Holy Warrior S heikh Dr Ayman Al-Zawahiri”. He described Al-Libi as “ Holy Warrior Sheikh , the Persistent Patient Sentinel , a Fundamentalist Theologian , the active scholar, the masterful and Exalted leader, the Eloquent Preacher , t he Holder of the Sword and the P en”. 34. Anwar Al-Awlaki was killed in a drone attack in Yemen on September 30 of 2011. Two weeks later the appellant posted a sermon on the website which he used regularly referring to Al-Awlaki and saying for example: “ America and these people will disappear and young men, by the will of Allah ( May He be praised and exalted) will always remember Al-Awlaki and his tapes. They will remember Al-Awlaki and his speeches and they will remember his incitement of his Ummah to defend the members of his Ummah. He lived a short time; he wrote, published and preached; he engaged in the Call and recorded and all for the sake of defending his religion. Those hearts delight ed in receiving the words of that dance d like brides in their hearts. America therefore feared the word because he was eloquent in the language they speak.” 35. Mr Mackenzie did not accept that Anwar Al-Awlaki was, as cl aimed by the respondent, an Al-Q aeda militant. In relation to this issue both sides referred to the Wikipedia article about Al-Awlaki. Certainly we should be wary of treating Wikipedia as evidence of the truth of anything said in it, and as Mr Mackenzie reminded u s, from an earlier discussion of this point at the CMR, many of the people cited as text sources write under what Mr Mackenzie appropriately described as whimsical pseudonyms, and Mr Mackenzie argued that it is clear there is a difference of view as to whether Al-Awlaki was in fact a terrorist or a threat to the US. He referred for example to a quotation at page 11, column 2 of the Wikipedia article where the Yemeni Foreign Minister said: “Anwar Al-Awlaki has always been looked at as a preacher rather than a terrorist and should not be considered as a terrorist unless the Americans have evidence that he has been involved in terrorism”. Also a journalist and author Glenn Greenwald mentioned doubt among Yemeni expert s about Al-Awlaki’s role in Al-Q aeda and called US government accusations against him unverified and lacking in evidence. In addition Al-Awlaki’s father stated that he believed his son had been wrongly accu sed and was not a member of Al-Q aeda. 36. Against that however has to be placed a good deal of evidence to the contrary . Mr O’Connor took us to referenced passages about Al-Awlaki having spoken with and preached to three of the 9/11 hijackers when Imam at a mosque in Fa lls C hurch, Virginia, having presided in 2001 at the funeral of the mother of Nidal Malik H a san an army psychiatrist who later e-mailed him extensively in 2008 to 2009 before the Fort Hood shootings carried out by Ha san; the fact of his ass ociation with Umar Farouk Abdul Mu tallab who attempted the 2009 Christmas Day bombing of an American airliner, the fact that the Yemeni government began to try him in absentia in November 2010 for plotting to kill forei gners and being a member of Al-Q aeda, reference by some US offic ials to Al-Awlaki in 2009 having been promoted to the rank of “regional commander” within Al-Q aeda and the fact that he repeatedly called for Jihad against the United States. There are many other examples of this throughout the article and they satisfy us that Al-Awlaki can properly be characterised as he has b een by the respondent as an Al-Q aeda militant and as the inspiration of Al -Q aeda terrorists. The appellant’s remarks about him have to be seen in that context. 37. The respondent’s second heading is with reference to applauding the internation al reach and aspirations of Al-Q aeda, particularly the targeting of attacks on the US . Here there is reference again to the item posted on 2 May 2011 where the appellant referring to bin Laden said “you have built a mighty edifice with its base in Afghanistan and its great structures in Jakarta , Malaysia , Pakistan , Ch echnya , Iraq , Somalia and Islamic Maghreb”. There is also quoted from the item of 3 May 2013: 38. The third heading and perhaps the most specific one to which Mr O’C onnor referred refers to ex c er p ts which he says involve inciting the audience to conduct act s of terrorism on behalf of Al-Q aeda. He argued that the praise and glorification offere d to the leaders of violent Al-Q aeda terrorism in the course of his speeches and sermons amounted in itself to an implicit encouragement to his audience to emulate them, and on occasions the appellant went further and expressly incited those reading or listening to his words to take up arms and fight for Al-Q aeda. Thus, in the interview of 2 May 2011 the appellant described bin Laden as having “handed over the banner to a generation that will eliminate this falsehood” and asserted that: “the Muslims will be victorious in Afghanistan and Iraq, otherwise how do you explain the Islamic state of Iraq currently in Iraq and the existing Jihadi movements”. 39. In his encomium to bin Laden posted on the same day the appellant said: “ If you have killed one Osa ma, the womb of the Ummah still contains a t housand times a thousand Osamas!” And also “ R est in peace, Abu Abdullah! You shall remain an inspiration to ordinary Muslims in the mountains of the Hindu Kush, of Khorosan and of Chechnya , and in the villages, hamlets, rural areas and towns of Iraq , Egypt , Som alia , the land of the two holy s ites, the P eninsula, Yemen , Oman , Sudan , Libya , Tunisia , Algeria , the Maghreb, Mauritania , and elsewhere!” 40. In his eulogy to Al-Awlaki of 14 October 2011 the appellant said: “ T hey imagine that by killing the person, by ending his life and suppressing his spirit, he will disappear and his words will die. They do not know that such words have been taken up by thousands of young people, who are a thousand Al-Awlakis. The womb of the Ummah is fruitful, praise be to Allah. Indeed, one better than Al-Awlaki has been killed and martyred. Was the S heikh of Islam, the Holy Warrior , Osa ma bin Laden not martyred last M ay? Did the Jihad stop ? Did the wheels of Jihad ground to a halt? Has the Ummah died? Does the Ummah die with the death of its leaders?” 41. Finally there is to be found in the appellant’s remarks following the death of Al-Libi posted on 11 September 2012 the following: 42. More generally Mr O’Connor argued that insofar that there were differences between the translations he did not wish to overstate these and considered it was unsurprising that they were not identical . The message, the cont en t , emerged just as clearly from all of them. He did make the general point that there was a tendency to paraphrase in the appellant’s translations, and referred to what had been said in that respect at paragraph 7 of Mr Bruce Watts ’ first witness statement (he being the translator of a number of the documents on behalf of the respondent). He also referred to paragraph 5 in the witness statement of the second translator relied on by the government who had listened to and transcribed four of the audio files and had been asked to comment on a witness statement made by the appellant’s translator concerning the style of the documents he had been asked to translate. In the view of the government’s second expert it was more accurate to say that the content was written using both an archaic vocabulary in the style. 43. With regard to the material itself it was a question of the inferences that the Tribunal could draw from it and how it should characterise the appellant’s intentions in making the statements. He argued that where items had been referred to as praising and glorifyin g the activities of leading Al-Q aeda terrorists the inference was that they implicitly encourage d emulation of these people. Also it formed the context for the rest of the material. The reference to “fight the fight” was in the context of praise for bin Laden and that gave colour to that phrase. 44. With regard to the reference s to the Ummah in the document of 20 July 2006, Mr O’Connor argued that this was used clearly as a rhetorical device and it was clear that the appellant meant the Jihadi community, bearing in mind that the references were all to Al-Q aeda leaders except for Basayev . The context gave colour to the use of the word “Ummah” and it was clear that it was being used as a rhetorical device by the appellant. This was not captured in the appellant’s translation , for example where at the appellant’s translation “ Ummah ” was simply translated as “nation”. Mr O’Connor also referred to paragraph 9 of the appellant’s translator ’ s witness statement where when the word “revolutions” was used for a second time in a sentence he used the word “experiences” in order to avoid repetition which Mr O’Connor argued was quite concerning. The main point he made however was the importance of the term “Ummah” and what the appellant meant by it which had to be taken from its context. 45 . Another general point made by Mr O’Connor was t hat the term “Jihad” was capable of a number of meanings. It could be a spiritual struggle but it was argued that here in context it was to be taken as meaning acts of mass terrorism. 46 . Mr O’Connor argued that this was also to be seen in the context of a further general point he made, that the appellant had not taken advantage of the opportunity to provide any explanation of the documentation on which the Secretary of State relied and that could have been done with regard to this term , for example. A common sense str aightforward inference was, Mr O’Connor argued, violent Jihad and terrorism as that was what bin Laden had done and the reference in this regard to Jihad at for example the interview posted on 2 May 2011 was to be seen in this light. On any reading these were tract s encouraging violence. The items concerning bin Laden taken together amounted to a glorification of him and Al-Q aeda, which he had built. Reference to the might y edifice in the eulogy of 2 May 2011 had clearly to be seen as sup port and encouragement to readers and listeners to become a brick in the might y edifice and was clearly a reference to Al-Qaeda . 47 . There was t he reference in the post of 2 May 2011 to bin Laden having not killed civilians and not having said that. Given that Al-Q aeda had been built by bin Laden as a big idea and was responsible for thousands of deaths, this had not been explained by the appellant and it was for him to do so and the statement was simply untrue. The context was important together with the lack of evidence by way of explanation on the part of the appellant. In general the same points were made with regard to the eulogising of Al-Awlaki. Again no evidence had been put in to explain what had been said or to refute the Wikipedia entry. The Wikipedia article gave context to the appellant’s remarks about Al-Awlaki. The level of praise of him as a person who had b een so intimately linked to Al-Q aeda violence must lead to the conclusion that the appellant had intended inciting people to emulate and follow Al-Awlaki. 48 . The specific references to incitement were emphasised. These were not just matters of praise but did actually express incitement to join Al-Q aeda. 49 . With regard to the O mbudsperson’s report, th e appellant had been on the Al-Q aeda sanctions list since 2005. The Secretary of State had made it clear that she did not rely on the fact of the appellant’s listing but asked the Tribunal to have regard to the way in which the O mbudsperson had looked at the material and had provided sensible powerful reasoning for her conclusion that she was fully satisfied that the appellant’s statements and postings constituted speech which evidently crossed the threshold and in which he encouraged and invited participa tion in, and assistance to, Al-Q aeda and through which he glorified that organisation and its members. It was the case that the test employed by the Ombudsperson was different i.e. whether or not the ap pellant was associated with Al-Q aeda, and there wa s a different standard of proof, akin to a reasonable suspicion. Nevertheless it was a valuable exercise and the material was useful though clearly not binding. It assisted the Tribunal, which was asked to have regard to the entirety of the document. 50 . In his submissions Mr Mackenzie argued that the respondent h ad not disclosed a single item i n which the appellant had mentioned an act of terrorism in approving term s let alone stating that anyone should commit one. His remarks about Osama bin Laden had to be seen in the context of his belief that bin Laden “did not kill civilians and did not say that”. It was beside the point whether the Tribunal regarded that as a correct summary of bin Laden’s career; the point was that that was what the appellant believed. It was important to note his clear opposition to Isl amic S tate on account of its brutal acts of terrorism. In a co-authored article posted on 25 August 2014 he had spoken critically of Islamic S tate, listing a number of its crimes and particularly criticising it for murdering civilians. The only references to terrorism referred to by the appellant therefore were ma tters mentioned in critical terms. 51 . All the matters referred to by Mr O’Connor had to be seen in the context of the appellant’s firm refusal to accept that any of the people of whom he spoke had done anything wrong. Nor was there any evidence that anyone had ever been in fact encouraged to commit any act of terrorism or join a terrorist organisation or to commit support or contribute to any such act or any such organisation by reading or listening to the appellant’s views. There was only the fact that people had visited the web pages where the comments were posted , but that did not show how many if any of them had agreed with those comments let alone how many if any were encouraged by them to take any action of any sort. The tone and content of the speeches, which Mr Mackenzie characterised as dens e, wordy and full of scholarly Ko ranic illusions were hardly likely, Mr Mackenzie argued , to attract potential terrorists , in particular impressionistic or vulnerable people as contended by Mr O’Connor, in comparison to the graphic and violent internet postings of organisations such as Islamic S tate. The fact that the appellant had not provided a statement or chosen to give evidence in respect of the allegations against him was by the way , in that th e respondent had chosen to put he r case entirely on the basis of his public pronouncements. At no point had he expressed approval of any act of terrorism and never said that anyone should commit an act of terrorism and had actively criticised people who did and praised people who in his view did not commit acts of terrorism. 52 . Mr Mackenzie submitted that t here was nothing in the various ex c er p ts from the appellant’s pronouncements which made good the Secretary of State’s claim. For example the sermon of 3 May 2013 address ed the second anniversary of the killing of bin Laden by US Special Forces, in respect of which much technical detail was given as to what happened, and bin Laden was referred to in the context of the Islamic leaders who expanded Islamic rule as far as Spain and Portugal i.e. he was a military leader and referred to him as resisting “ the evil American power”. The item concerning Al-Libi referred to him as a warrior, scholar and martyr and again there was no reference to acts of terrorism or call to others to commit such acts. All that was said about Al-Awlaki was that he wrote, published and preached, and that people delighted in receiving his words and that America feared the word. There was no ref erence to incitement of Al-Q aeda violence , and defending the members of his Ummah was not the same thing. It was relevant to note that the appellant added that Al-Awlaki “told us to fight against the unbelievers ‘with your tongues ’, with words” and asking rhetorically whether Al-Awlaki carried weapons he answered himself: “he used the word and the word was a missile”. 53 . As noted above, the interview with the appellant on 2 May 2011 contained an express denial on the part of the appellant that bin Laden killed civilians. The i tem of 18 November 2007 contained no approving reference to any acts of terrorism but in fact the appellant criticised practices such as killing people on sectarian grounds and using human shields. He defended Jihadi groups against allegations of carrying out such things , saying it was the American s and despotic Middle E ast regimes who did this. Again this was a matter of his belief and could not sensibly be read as a call to other s to commit acts which he attributed to those whom he regarded as enemies. Sympathetic comments about Al- Zawahiri in the biography fell far short of demonstrating involvement in acts falling within Article 1F(c). 54 . As reg ards the O mbudsperson’s report, it was important to bear in mind that s he was answering a different question from that posed to the Tribunal, applying a different standard of proof, not inclined to take any account of the First-tier Tribunal’s decision and she applied a broad definition of “support” for Al-Q aeda as an organisation which s he treated as including expressions of sympathy. Her focus was not on the question which was before the Tribunal. It was also clear that she had taken account of evidence which was not before the Tribunal, for example there was reference to a telephone interview of April 2007 and reference to material which indicated uses made of the website which was a forum for many of the appellant’s emanations.