The United Nations Security Council is about to adopt a resolution on foreign terrorist fighters, scheduled for the afternoon of Wednesday, September 24 when President Barack Obama will be chairing the meeting. This will not be a mere political declaration adopted at highest political level but a “legislative” resolution with “teeth,” adopted under Chapter VII of the UN Charter and therefore legally binding for all UN Member States and obtaining, by virtue of Article 103 of the Charter, primacy in relation to any other international agreement of states.
This blog post argues that the envisaged resolution constitutes a huge backlash in the UN counter-terrorism regime, comparable to Security Council Resolution (SCR) 1373, adopted in the immediate aftermath of the atrocious terrorist attacks of September 11, 2001. It wipes out the piecemeal progress made over 13 long years in introducing protections of human rights and the rule of law into the highly problematic manner in which the Security Council exercises its supranational powers.
When the UN Charter was adopted in 1945, a careful balance was struck between the powers of various UN organs, and in particular between the General Assembly and the Security Council. While the General Assembly represents the development of international law, adoption of new legally binding treaties, traditional modes of decision-making in international organizations and therefore respect for the sovereign equality of states, the Security Council is in charge of addressing threats to international peace and security, through political action by a small number of states including five major victors of World War Two and, if necessary, supranational enforcement. Judicial powers were vested with the International Court of Justice with authority to resolve disputes between states in contentious cases.
Then came Osama bin Laden, Al-Qaida and 9/11. International terrorism was identified by the Security Council as a threat to peace and security, and the Security Council took for itself both “legislative” and “judicial” powers. Two crucial moments were SCR 1373 in September 2001, legislating on legal obligations of Member States in the combat against terrorism, and SCR 1390 that, in early 2002, broadened the earlier mechanism of temporary smart sanctions against the leaders of the Taliban in Afghanistan into a permanent global list of Al-Qaida and Taliban terrorists.
As the first UN Special Rapporteur on human rights and counter-terrorism (2005-2011), I took the view that the Security Council was acting ultra vires, going beyond its powers as provided by the UN Charter. This was because the SCR 1267 mechanism of smart sanctions had been converted, mainly through SCR 1390, into a permanent regime of permanent sanctions against individuals and entities, without geographical or temporal limits and providing for sanctions that for their severity were analogous to criminal punishment. And this was also because the SCR 1373 regime was maintained as the legal basis for UN action against terrorism beyond any reasonable duration of a crisis situation that had emerged on 9/11. The story has been told and carefully documented in Lisa Ginsborg, The New Face of the Security Council since 9/11: Global Counter-Terrorism, Human Rights and International Law, PhD thesis in law approved at the European University Institute in June 2014.
If adopted as drafted (full text), the new Security Council Resolution will identify, in its preambular paragraph 1 (PP1), as one of the most serious threats to international peace and security, “terrorism in all forms and manifestations”—not just international terrorism or specific forms of it. It imposes upon all Member States far-reaching new legal obligations without any effort to define or limit the categories of persons who may be identified as “terrorists” by an individual state. This approach carries a huge risk of abuse, as various states apply notoriously wide, vague or abusive definitions of terrorism, often with a clear political or oppressive motivation.
The most alarming provision in the draft Resolution is its operative paragraph 6 (OP6):
“6. Recalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:
a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training;
b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; and,
c) the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training”
This provision, even if difficult to enforce by the Security Council itself, and therefore representing a panic reaction that is mainly symbolic at UN level, will provide a handy tool for oppressive regimes that choose to stigmatize as “terrorism” whatever they do not like – for instance political opposition, trade unions, religious movements, minority or indigenous groups, etc. Let us assume that a country applies a definition of terrorism that includes organized campaigns of indigenous groups toward self-determination by non-violent means. Criminalizing the provision of training to empower these groups, including in the field of human rights, would then be legitimized by OP6. The repressive regime would refer to its obligations under the UN Charter to justify a crackdown upon travel, training and funding of organizations and movements said to constitute a threat to the oppressive regime itself – even when totally nonviolent.
The situation of the Uighurs in China, or the harassment experienced in recent days by leaders of Russian indigenous communities trying to travel to New York for the World Conference on indigenous peoples, demonstrate that the above scenario is totally realistic.
The draft resolution has other problems as well, including:
- failure to mention human rights in PP5;
- repeating the wrongful implication in PP19 that abuse of refugee status would constitute a real terrorist threat;
- imposition of an obligation to exchange passenger name records in OP9, without providing proper safeguards; and
- failure to maintain and further develop the idea first adopted in 2008 in SCR 1822 that the UN itself must comply with human rights when combating terrorism.
What makes the new resolution into a serious backlash adopted in panic is the combination of OP1 and PP6. The resolution must be fixed by:
- limiting the identified threat to peace and security to international terrorism or specific forms of it;
- carefully considering in each paragraph whether the measures could be restricted in scope, so that they apply only in respect of individuals and entities associated with Al-Qaida; and
- restricting the scope of abusive application by individual states by including a provision defining the constitutive elements of international terrorism that legitimately are subject to UN action.
The last-mentioned fix could be made by repeating OP3 of SCR 1566 adopted in 2004, as an important step in mitigating the consequences of 9/11 panic. Failure to include such a clause is the clearest demonstration that we are now confronted with a backlash pushed through in panic. While SCR 1566 may not be a perfect definition of terrorism, it nevertheless is the best that the Security Council has said in the matter and is capable of curtailing abuse by demonstrating that the Security Council can only oblige states to combat such forms of international terrorism that, inter alia, entail deadly or otherwise serious physical violence against human beings and that have been included in international conventions and protocols on specific forms of terrorism. In sum, according to OP3 of SCR 1566 the three cumulative conditions upon what constitutes international terrorism are:
“ criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages,  with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act,  which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.”
Better to fix now than later. Resolution 1373 required a lot of subsequent fixes and never became very good. Why do we have to see the same happening again?