President Obama to Preside over Flawed UN Security Council Resolution on Foreign Fighters

On Wednesday, President Obama will take the unusual step of chairing a session of the U.N. Security Council, which will consider a U.S.-sponsored draft resolution on foreign fighters. The resolution takes as its basis that “foreign terrorist fighters increase the intensity, duration and intractability of conflicts, and also pose a serious threat to their States of origin, the States they transit and the States to which they travel.” Its goal is to crack down on individuals – particularly from Western countries – who travel to the Middle East to fight for terrorist groups like ISIS. Some of the resolution is sensible, but parts are based on dubious assumptions about the causes of terrorism and create legal loopholes that invite abuse, such as a provision that could provide cover for citizenship stripping measures.

The draft resolution includes an entire section on “Countering Violent Extremism in Order to Prevent Terrorism,” which exhorts states to take various measures to counter “violent extremism, which can be conducive to terrorism.”

There’s a reason the resolution uses such conditional language. Since 9/11 the U.S. and other Western governments have commissioned a multitude of studies to explore the link between particular types of ideology and terrorism with the goal of identifying incipient terrorists. But, as with the efforts to predict ordinary violence that started a century ago, these efforts have not led to the identification of ideological markers that will allow us to predict who will become a terrorist with any degree of certainty. Rather, empirical studies show (unsurprisingly) that a wide variation of social, political and personal factors are involved in a turn to terrorism.

Of course if you study a particular terrorist you may find that they clothe their violent acts in ideological garb. But the proposition that extreme ideology drives individuals to terrorism is not supported by real evidence. Just look at the example of Yusuf Sarwar and Mohammed Ahmed, Britons who were arrested as they tried to travel to fight in Syria. They purchased Islam for Dummies on Amazon before they set out, suggesting that religion was more likely a cloak for whatever motivated these young men.

Then there’s the question of what is meant by “violent extremism.” Violence is easily identified. Extremism? Not so much. Do the normal observances of conservative Muslims – such as women covering their heads or men growing beards – count as extreme? What about Muslims who believe in restoring an Islamic Caliphate in the Middle East? At home, this type of thinking has led the NYPD and the FBI to monitor entire communities of Muslims and sowed enormous mistrust between the government and the people best positioned to assist in its counterterrorism efforts. One shudders to think of the cover this provides repressive governments around the world. Egypt’s General Sisi and Syria’s Assad already describe their opponents as terrorists. This resolution provides them an even bigger umbrella for crushing dissent.

Many of the draft resolution’s prescriptions for handling violent extremism seem relatively benign. There is also little evidence that they work. For example, the resolution:

Encourages Member States to engage relevant local communities and non-governmental actors in developing strategies to counter the violent extremist narrative that can incite terrorist acts, address the conditions conducive to the spread of violent extremism, which can be conducive to terrorism, including by empowering youth, families, women, and all other concerned groups of civil society …”

This provision could be the basis of constructive efforts to provide avenues for young Muslims to channel political and social concerns. But it may also lead to programs such as the U.K.’s Prevent program, which have the potential to go very wrong. As Arun Kundnani and I have argued elsewhere:

“Prevent has been unpopular across the political spectrum. … many British Muslims view it with resentment and suspicion. It is seen as embodying their government’s unequal approach to violence emanating from their communities compared to others. Right-wing violence, for example, is dealt with as a matter of individual criminal activity, but Muslims are told that terrorism is an ideological problem, which they have a special responsibility to solve. . . Non-Muslim communities, for their part, have criticized the British government for pouring money into the development of Muslim communities while ignoring other groups. Many conservatives hated Prevent because they felt the government’s efforts had no measurable impact.”

It is premature to develop international standards around domestic models that have at worst backfired or failed, and at best remain untested and highly questionable.

The draft resolution also nods to the recent trend in Western countries to revoke the citizenship of individuals who are suspected or convicted of being terrorists. Canada and the United Kingdom have passed such laws, which are being considered by other European countries as well. U.S. Senator Ted Cruz introduced legislation to do the same (which, as Just Security’s David Cole explained, is clearly unconstitutional). Some of these laws allow states to strip citizenship even when doing so would render an individual stateless. Such moves are highly questionable under the 1961 Convention on the Reduction of Statelessness, even in cases where a country (like the U.K.) has reserved its rights. Against this backdrop, the draft resolution provides:

“Member States shall prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that he or she is seeking entry into or transit through their territory for the purpose of participating in [acts of terror]” … provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals or permanent residents.”

On its face, the proviso at the end reassures countries that they don’t have to block citizens or resident seeking to return home. By the same token, it suggests that states have the prerogative to expel citizens they suspect to be foreign terrorist fighters if they want to. Given the expansive way in which Security Council resolutions are sometimes interpreted (remember Libya), it provides cover for governments to exclude their own citizens. It helps not only David Cameron, but also a host of countries that may seek to exile citizens who are considered problematic.

Denying individuals the right to travel home also raises the question of what happens to them. Will they simply be allowed to roam free in the countries where they are located or (as seems more likely) will transit countries such as Turkey or Egypt detain them? This creates obvious concern that Western countries will once again become involved in facilitating the detention and interrogation of suspected terrorists in places with unsavory human rights records—with all the deprivations and risk of blowback that entails.

It is unnerving to see young men brought up in Western democracies join a vicious group like ISIS. The impulse to do something in response is strong, but some of the measures contemplated could make things worse rather than better. 

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).