Counter-terrorism regulation by the United Nations Security Council that invokes Chapter VII of the U.N. Charter has expanded exponentially since 9/11. I have previously outlined my concerns that this expansion undermines the traditional basis of consent for international lawmaking, undercuts the protection of human rights, creates an unequal exercise and burden of power between States on the Security Council and those that are not, and chips away at the sovereignty of States that do not sit on the Council. Another resolution along these lines is pending this month, this time on the linkages between international terrorism and organized crime. Whether or not it is based on Chapter VII or another chapter of the Charter, not only do these concerns arise again, but the proposal expands Security Council regulation anew in the area of domestic criminal law.
My concerns with this resolution are multifold:
- This regulatory seizure was not, per se, intended by the drafters of the Charter.
- Many States may be unaware of the implications for their sovereignty.
- The potential diminution of protection of human and constitutional rights under domestic law is massive.
- The lack of transparency in the process that produces such binding obligations is jaw-dropping.
The draft resolution is being offered by Peru, and an Open Debate is proposed for the Security Council on July 9, with likely adoption of the resolution the following week. While I have not been officially provided a copy (human rights input to the Security Council from specialized U.N. entities such as mine on draft resolutions can be offered, but such advice is not hardwired into the system), an advanced draft is in circulation.
By way of background, before 9/11, the Security Council was reasonably active on counter-terrorism issues, but importantly, relevant resolutions were linked to particular situations. Examples include U.N. Security Council Resolution (UNSCR) 748 on Libya (1992); UNSCR 1054 and UNSCR 1070 on Sudan (1996); and UNSCR 1267 on Afghanistan setting up a system of targeted sanctions against the Taliban leadership (1999). Notably, prior to 9/11, no Chapter VII resolutions existed that imposed a legal duty on states to introduce specific kinds of domestic counter-terrorism legislation. Moreover, while treaty making was dominant in the regulation of terrorism before 9/11 and remains important today, it has been overtaken by the assertive role adopted by the Security Council in regulating state responses to terrorism via resolutions.
Post-Cold War Expansion
Understanding the context for the role and practice of the Security Council after 9/11 requires a brief reflection on the expansion of the scope of Security Council action in the aftermath of the Cold War. At the time, a reinvigorated Security Council regulated more forcefully in a broader array of war and peace arenas.
A notable change was the Council’s practical enlargement of the notion of ‘threat to international peace and security.’ This move, prompted by new challenges to global peace and security, included situations that would have traditionally fallen outside of the understanding of the scope of collective action under the Charter. This included situations of non-international armed conflict, gross violations of human rights amounting to crimes against humanity, humanitarian crises, coups d’état, or other serious threats to the democratic order of a state. In obvious ways, the broadened definition of ‘threats to peace and security’ laid the groundwork for the expansion of such threats to include global, regional, and national experiences of terrorism.
In the decade leading to the events of 9/11, the Security Council further broadened its playing field by focusing on issues beyond any particular conflict or situation. They included, among others, the protection of children (as in UNSCR 1261 and 1265 (1999) and UNSCR 1296 and 1314 (2000)) and civilians (UNSCR 1265 and 1296 (1999)), in situations of armed conflict; the role of women in the context of peace and security (UNSCR 1325 (2000)); flows of small arms and light weapons to Africa (UNSCR 1209 (1998)); HIV/AIDS (UNSCR 1308 (2000)); and international terrorism (UNSCR 1269 (1999)).
The scope of terrorism as threat has been further broadened over multiple resolutions until we now find “terrorism in all its forms and manifestation” defined as “one of the most serious threats to peace and security” in Resolution 1456. I stress that, notwithstanding commonalities with post-Cold War expansions of Security Council competence, the regulation of terrorism by the Security Council has unique and specific dimensions. These elements also pose significant challenges to the meaningful protection and promotion of human rights while countering terrorism.
Expansion of the Council’s Scope Since 9/11
Since 9/11, the Security Council has issued sweeping and important statements of principle on the prevention of terrorism: they are clear, at least in their rhetorical sense, and undeniably enhance States’ duties to prevent and repress terrorism. The most important of these resolutions is UNSCR 1373 in 2001. It has been called a super legislative resolution, mandating States to take specific actions, including criminalization of particular acts under domestic law.
In parallel to the thematic leg of Resolution 1373, the Security Council after 9/11 also bolstered the sanctions regime that had been set up under the aforementioned UNSCR 1267 (1999) targeting the Taliban leadership in Afghanistan. The Council, in UNSCR 1390 (2002) and subsequent resolutions, reframed sanctions as a global, open-ended regime focused on any “individual, group, undertaking, or entity associated with Al-Qaida, Usama bin Laden or the Taliban,” and not necessarily linked to a particular situation or conflict.
The sanctions regime was further bolstered by UNSCR 1617 (2005), enacted under Chapter VII, on “Threats to international peace and security caused by terrorist acts.” Other important legislative milestones include targeting the activities of ISIL and other armed groups in Syria and Iraq and the flow of foreign fighters to the region, with the adoption of UNSCR 2170 on Aug. 15, 2014, swiftly followed by UNSCR 2178 on Sept. 24, 2014. While both resolutions were adopted under Chapter VII of the Charter, UNSCR 2178 specifically builds on the model set by the previously mentioned UNSCR 1373, by establishing a set of far-reaching legislative obligations on all Member States.
Each new resolution has built on these legislative mandates, reaching deep into the criminal law domain of States, including a record six thematically diverse terrorism-related resolutions in 2017 (UNSCR 2341, UNSCR 2354, UNSCR 2368, UNSCR 2370, UNSCR 2395, and UNSCR 2396). The latter of those resolutions, 2396, called on States to strengthen efforts in ways that have serious implications for domestic legal regimes, including by turning recommendations contained in previous resolutions into binding obligations under Chapter VII. These domestic legal effects directly affect the human rights obligations of States and may de facto neutralize the capacity of domestic human rights norms and institutions to operate effectively in protecting citizens and non-citizens alike.
In March 2019, the Security Council passed yet another terrorism resolution, UNSCR 2462, formally focused on terrorism financing but with exceptionally problematic implications for humanitarian and civil society actors operating in fragile and/or conflict environments. The legislative aspects of that resolution mandated extensive financial regulation for the undefined crimes of terrorism financing and support, and expanded the definition of material support to terrorism. At the same time, it provided few meaningful protections for human rights violations that inevitably will occur, as already demonstrated by the use of terrorist financing provisions to target civil society actors, dissidents, and human rights defenders in multiple States.
Organized Crime Resolution Extends Human Rights Risks
Now we see yet another resolution emerging. I predict that the nexus of “organized crime” and terrorism will be named as a threat to global peace and security to justify the invocation of the Charter. This begs the obvious question as to whether such a designation is empirically justified, given the propensity for abuse in enforcement of both organized crime and terrorism laws and regulations.
Neither term has an agreed definition under international law, allowing States in practice to define both as it suits their political, strategic, and utilitarian interests. Given in particular the wide variety of definitions of “organized crime” domestically, we can predict this will be yet another Security Council resolution in which core terms are undefined, giving States carte blanche to expand terrorism regulation to a wide variety of acts that may (or may not) constitute an agreed threshold under international law. In turn, States have the latitude to move their serious crime regulation into a realm of exceptional law, where invariably human rights protections are limited, scrutiny of State practice is circumscribed, and the ability to apply human rights (and constitutional) protections will be weakened.
It bears reminding that a U.N. Convention against Transnational Organized Crime already exists, adopted in 2000 by the U.N. General Assembly. If all States were to be equally and fully involved in expanding the scope of such a regime, the Security Council would not be the proper forum. There is a grave danger that, despite the fact that terrorism and transnational organized crime have different motivations and applicable legal regimes, the pending Security Council resolution will blur and deliberately break down those distinctions (and legal protections), obscuring the rights of individuals and the obligations of States in deliberately obfuscating ways.
If the scope of this resolution were wildly expansive, I would predict that it will cover all manner of illicit trade (gold, metals, stones, minerals, wildlife poaching, oil, trafficking, extortion, kidnapping, and potentially a wide range of abuses of legitimate commercial enterprise and non-profit organizations). That would move a slew of criminal law regulation into the terrorism arena, in ways that colossally expand the criminalization of material support of terrorism.
This would be a slick regulatory move that wholesale takes the arsenal of exceptional powers ascribed to terrorism regulation and moves them into the fulcrum of organized and regular crime management, happening in a closed process involving 15 States with no meaningful input from all affected States. To state the obvious, it also excludes criminal law, constitutional law, and human rights experts.
No doubt, there might be a couple of throwaway references to “in accordance with international law” found in the resolution. But this decorative addition follows from a clear understanding that the language, in fact, means nothing and requires nothing of States without meaningful human rights oversight and benchmarking that is absent in every single Security Council Resolution on terrorism since 9/11.
By the time national legal systems, including courts, wake up to the invocation of such powers in their domestic legislative and executive branches, they will be dutifully reminded of their obligation of compliance under Chapter VII or other provisions of the U.N. Charter. And the “obligations” will have been delivered by an opaque and non-transparent system that produces resolutions of massive import to sovereignty and human rights in a matter of weeks, in the quiet and undisturbed side rooms adjacent to the Security Council in New York.
IMAGE: US army elite team members participate in the 2011 Commando Forces competition in San Salvador, on June 21, 2011. Twenty-five teams from countries of the hemisphere participated to prepare elite forces to fight terrorism and organized crime in Latin America. (Photo by Jose CABEZAS/AFP/Getty Images)