Members of the United Nations Security Council meet at U.N. headquarters, April 5, 2017 in New York City. (Drew Angerer/Getty Images)

While much of the world was not paying attention, on Dec. 21 2017, the UN Security Council adopted a worrying resolution urging states to deal with foreign terrorist fighters by strengthening their efforts in three key areas; border security, information-sharing, and criminal justice in ways that could have serious consequences for civil liberties, human rights, and the rule of law worldwide.

UN Security Council Resolution (UNSCR) 2396 is a direct follow-up to the council’s 2014 resolution that mandated member states establish ways of prosecuting people attempting to become foreign terrorist fighters, UNSCR 2178 (more on this below). The latest resolution is the result of investigations by members states into the patterns in fighting, return, and location of persons who joined terrorist organizations in order to assess the threat that foreign fighters pose while in transit to and from their home countries.

Taken together these resolutions contain a number of new regulatory departures at the international and domestic level. Both resolutions engage the Security Council in directing national legislative practice in expanded ways. One emerging trend in the negotiation of these Security Council counter-terrorism resolutions is a desire by some states to effectively standardize global criminal law practices as they relate to and overlap with domestic terrorism regulation. In this sense, these resolutions are deeply intrusive upon national sovereignty in new and little appreciated ways, and portend a move to side-step some of the most fundamental elements of national protection for rights, separation of powers within national legal systems and the checks and balances that most societies assume apply when substantive criminal law regulation is embarked upon. While some of the worst aspects of that approach were not adopted within the latest resolution it should be noted that a number of states pressed heavily for the adoption of lock-step criminal justice measures to address foreign fighters in earlier drafts. It should also be said that if this kind of legislation were mooted in most national legal systems there would be (one would hope) extensive debate and back and forth about the value, efficiency and rule of law compliance of the measures mandated in the resolution. The fact that criminal justice debates are occurring in the Security Council means that in practice that they are occluded from national discussions, presented as a fait accompli when decided, and then imposed as fiat on domestic jurisdictions even when they present considerable challenge from rights based, separation of powers, or rule of law perspective. What does this mean going forward? Simply put, as this post explains below, it means that much greater attention needs to be paid to the encroaching space of the Security Council on criminal justice regulation.

By way of background, Resolution 2178 starts from the premise that foreign terrorist fighters, or FTFs, “increase the intensity, duration, and complexity of conflicts and may constitute a serious danger to their States of origin, transit, destination, as well as neighboring zones of armed conflict in which they are active.” Although the Security Council recognizes the “foreign terrorist fighter phenomenon is far from new,” it asserts the current movement of FTFs with ISIL and other groups is “created, encouraged and sustained by certain newer phenomena which arguably make the current threat qualitatively different from those that have occurred in the past.” In this framing, these resolutions create the conditions to move the United Nations Security Council squarely towards taking up national criminal justice regulation, priming national criminal justice requirements, shaping the legal frames of national criminal law, and portend legislation from a distance.

UNSCR 2178, introduced a definition of foreign terrorist fighters as individuals who travel or attempt to 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”. The resolution also introduced an obligation mandating that member states establish criminal offenses so that potential terrorist fighters could be prosecuted for their intention to travel in order to participate in terrorist acts. For this obligation to be implemented, states are required to have “credible information that provides reasonable grounds to believe” that identified individuals might become foreign terrorist fighters and act to prevent their entry or transit through their territories. Specifically, the resolution:

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; (emphasis is mine)

However, the criminal regulation of people’s intentions is tricky to implement in practice, and the distinctions around parsing intent are notoriously complex in multiple legal systems. All to say, that a Security Council requirement for nations to adopt legislation regulating people’s intent to participate in a particular action (the exact contours of which may be hazy at best in individual cases), ought to concern all of us with even a passing knowledge of the difference between a choate and inchoate criminal offence (choate offences being complete criminal acts where actual harm can be measured, and inchoate offences being the criminalization of preparing for or seeking to commit a crime i.e. criminalizing an act where the harm has not yet occurred). Resolution 2396 goes significantly further than its predecessor by requiring states to strengthen their efforts in border security, information-sharing, and criminal justice in ways that have serious implications for domestic legal regimes. Regarding criminal prosecution, the resolution pushes UN member states to develop investigative and prosecutorial strategies to “bring to justice” anyone suspected of participating or supporting terrorists as defined by earlier resolutions:

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 support of terrorist acts is brought to justice, and further recalls its decision 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 the activities described in paragraph 6 of resolution 2178 in a manner duly reflecting the seriousness of the offense;

Urges Member States, in accordance with domestic and applicable international human rights law and international humanitarian law, to develop and implement appropriate investigative and prosecutorial strategies, regarding those suspected of the foreign terrorist fighter-related offenses described in paragraph 6 of resolution 2178 (2014)

Reaffirms that those responsible for committing or otherwise responsible for terrorist acts, and violations of international humanitarian law or violations or abuses of human rights in this context, must be held accountable.

A second central plank of this resolution is its emphasis on information gathering and information sharing among states. In principle, the principle of human rights and rule of law based information sharing between states is not per se objectionable. But the principle of sharing assumes that all states value privacy equally; do not misuse information to target individuals outside of the rule of law; and that information practices including integrity, anonymity, destruction as appropriate are rule of law based. This is not, as many Just Security readers understand, the case in practice. Specifically, it should be noted that this resolution creates a number of new obligations for states including the requirement that states shall develop watch lists and databases of known and suspected terrorists (“including but not limited to foreign terrorist fighters”). Given the well-documented practices of multiple states in targeting civil society activists, writers, dissenters, and human rights defenders as terrorists the prospect of lists of this kind should provoke deep concern for the protection of rights. Here, Security Council dictate may be used by states to nefariously target those who disagree with them in new and highly coercive ways not only within their borders but across with co-operation and impunity across borders. The relevant language of the resolution states:

Decides that Member States shall develop watch lists or databases of known and suspected terrorists, including foreign terrorist fighters, for use by law enforcement, border security, customs, military, and intelligence agencies to screen travelers and conduct risk assessments and investigations, in compliance with domestic and international law, including human rights law, and encourages Member States to share this information through bilateral and multilateral mechanisms, in compliance with domestic and international human rights law, and further encourages the facilitation of capacity building and technical assistance by Member States and other relevant Organizations to Member States as they seek to implement this obligation;

The kind of information that states are required to develop and implement (including but not expressly limited to foreign fighters) are:

… biometric data, which could include fingerprints, photographs, facial recognition, and other relevant identifying biometric data, in order to responsibly and properly identify terrorists, including foreign terrorist fighters …

I am not arguing against global, regional and national approaches to addresses the challenges (and maybe counter-intuitively the integration and rehabilitation opportunities) posed by the return of foreign fighters. There are good reasons to legislate responses to new terrorist challenges, and/or to use existing legislative measures when appropriate and effective. But, we should be collectively wary, first, when criminal law is outsourced to the Security Council. Second, we should be worried when limited national consultation, with both governments and civil society, is undertaken on such measures. Third, we should be circumspect when Security Council resolutions of sizeable national concern are rushed through before all the relevant UN and regional human rights organs have had a chance to opine and give advice on the rule of law implication of supra-national regulation. Finally, we should be deeply concerned when expansive and intrusive data collection is being mandated for all states across the globe without considered national consultation on constitutional or legislative protections for privacy, and without ascertaining the views held by all affected governments and civil society within most states on the collection of broad swathes of such personal and identifiable information (and widely sharing citizen information with other countries). The assumption inherent in this resolution is somewhat naive, namely that all states will collect such information fairly, without discrimination and that the misuse of anti-terrorism definitions will not function as the means to scoop up large amounts of personal information about persons who simply disagree with the state and are routinely labelled terrorists in multiple countries. I am not of the view that any of these assumptions are, in fact, borne out in practice.

I close by re-emphasizing the strong carceral and informatics approach embraced in this new resolution. There is a deep need for discussion and reflection on the primacy of the criminal law approaches to returnees and to countering extremism. The resolution does acknowledge some language supporting rehabilitation and other strategies (e.g. “to develop and implement comprehensive and tailored prosecution, rehabilitation, and reintegration strategies and protocols”) but it is marginal and limited by the thrust of a resolution focused on criminal justice, prosecution and advanced new ways to collect and share information globally.

The primacy this resolution gives to criminal law seems a short-sighted and potentially counter-productive approach, especially considering the broader global landscape focused on countering and preventing the “violent extremism that is conducive to terrorism”. (this terminology in the resolution is a welcome narrowing of the Security Council’s approach). Multiple political strategies including the UN’s Global Counter-Terrorism Strategy recognize the importance of identifying the drivers to terrorism and affirm the intersectional and multifaceted dimensions of addressing complex violence. From a criminal law perspective there is, as many scholars and practitioners have noted, often very tenuous links between ancillary and inchoate offences (including for example acts of intention, preparation, and attempt)  and principal offences associated with acts of terrorism. My intuition is that this will be a challenge with transposition of the resolution at the national and regional level (particularly for European Union states). It also clearly has human rights implications around legality, certainty, and proportionality. It is worth recalling that in the European context there were serious challengers to 2178 transposition (e.g. including concerns that the regulation of traveling abroad for terrorism was both too vague and impinging on the presumption of innocence), and we can anticipate the same antipathy with this resolution.

On the positive side, there is a sizeable sprinkling of the words ‘human rights’, ‘international law’, ‘international obligations’, that may provide some comfort that these expansive mandates will have some limitations when transposed nationally and will be subject to rule of law constraint. However, if we take the document at face value much of that seems really superfluous and does not have any concrete benchmarking, specificity, or enforcement unlike its specific elements regarding data collection and criminal justice cooperation. Moreover, the document’s enforcement sections give particularly identified agencies and institutions potentially sizeable resources to enable states to be compliant. No such resources are spent to ensure that the resolution’s transposition is human rights and rule of law compliant. This is a major limitation, one in need of active remedy. The resolution would have been immeasurably strengthened if it had included some monitoring or reporting requirements on the human rights and rule of law implications of the measures that it mandates. For example, states could be equally encouraged to publish and make data available to demonstrate human rights compliance with the requirements of the resolution. In another potentially positive element, the document mentions the inclusion of civil society as a partner in the project of countering terrorism. While this is a constructive move I have some concern that it appears entirely utilitarian and commodified given the lack of specificity and inclusion across the board on the conception and implementation of this resolution. When civil society is entirely excluded from consultation on a new Security Council Resolution and has little or no meaningful access to the counter-terrorism architecture of the United Nations, the inclusion of civil society as a partner to enforcement rings a little hallow.

One might reasonably wonder if the passage of the various requirements in the resolution, including the definitions of crime, was informed by any sustained advice from criminal justice experts working within the widely varied criminal law systems around the globe. Given the rapid timeline in which the resolution was drafted and its relative secrecy from external comments, one might reasonably assume that the answer is no. The lack of transparency in global regulation at the Security Council level should concern rule of law advocates across the globe, whatever their political views. The Security Council is not a short cut around the necessary and distinct process of criminal law regulation which includes necessary checks and balances in our societies. Nor is the council the place for expansive data collection to be mandated without at least the appearance of extensive debate, consultation by multiple states, civil society, and national and international human rights institutions. This resolution passed without notice as much of the world stopped to take a holiday. It was not heralded or given a PR roll-out. We cannot allow that to detract from understanding its scope and practical consequences. National legislators, human rights institutions, civil society actors, and many states who may not fully understand its domestic impact must become aware of the challenges to the rule of law this resolution poses – and then put in place the national and international mechanisms to prevent human rights abuses based on Security Council license.