The United Nations Security Council is actively negotiating a new Chapter VII resolution directed at the regulation of so-called “foreign terrorist fighters” this month. Chapter VII resolutions are premised on identifying a “threat to peace and security” and are binding on all States as a legal matter. As Indonesia is currently holding the presidency of the Council, this would appear to be an Indonesian initiative. However, it will likely drum up significant support from other States, not least because when agreement is low on other issues, it appears that one can always get Security Council agreement on a resolution addressing terrorism. Here, I assess whether such a resolution is really needed at this time, given the spate of previous actions the Security Council has taken in this area. I identify six issues this resolution could, and should, address if it is to take on the most pressing needs in this area.
The production of yet another resolution on foreign fighters begs an obvious question as to why it is needed, and why now? Specifically, what kind of regulatory legal gaps are so cavernous that a Security Council resolution, which appears to stake out legislative territory that falls within the clear, domestic sovereignty of States’ criminal law, is being rushed through negotiations mid-summer with little or no open and transparent consultation or engagement beyond the 10+5 on the Security Council (the 10 elected members plus the five countries who hold permanent seats).
Moreover, the expanding use of foreign fighter-related resolutions to inflate the scope of “terrorism” regulation more broadly speaks to a larger regulatory problem with these resolutions as a whole. Security Council resolutions on terrorism have enabled vague and repressive counter-terrorism regulation domestically, facilitated the targeting of civil society and legitimate protest, shut-down freedom of expression, and provided cover for targeting minorities and dissenters across the globe. Given the well-defined legal obligations of States to prosecute terrorism under existing Chapter VII resolutions (UNSCR 1373), and both treaty and customary law obligations to prosecute genocide, crimes against humanity, and war crimes, we do not lack a clear legal basis for States to activate their domestic criminal laws to address the serious human rights and humanitarian law violations and abuses that have taken place in Syria, Iraq, and elsewhere over the past decade. State failure to do so, and particularly the failure by a number of Western and European countries to repatriate nationals and utilize their legal systems, which are best placed to provide accountability and fair trials, speaks volumes to a bankruptcy of moral and legal leadership.
From my perspective as special rapporteur on counter-terrorism and human rights, the most significant need to be addressed by a resolution on foreign fighters ought to be focused primarily on the massive humanitarian disaster which has unfolded in northeast Syria and in Iraq since the fall of the Islamic State. Over 70,000 women and children continue to live in conditions that meet the threshold for torture and inhuman and degrading treatment under international law, and are exacerbated by recent reports of a COVID-19 cases in al-Hawl camp. The repatriation of nationals is the only effective and legally sound means available to ensure that the obligations set out in prior Security Council resolutions are realized. So then, the first and most obvious positive contribution that a new Security Council Resolution might make is to underscore the importance of repatriation as a means to achieve a rule of law-based response to the management of foreign fighters. A number of countries have already shown genuine leadership on this front (Russia, Kazakhstan, Kosovo, Bosnia, and Tunisia), but it is clear that there are a number of States who profess commitments to accountability without being prepared to do the hard work domestically to deliver it. If the word repatriation does not appear in this resolution, and we don’t see positive encouragement of and support for repatriation, we can judge the outcome as an exercise in political draft-dodging.
Fair Trial and Due Process
Second, a necessary and needed contribution by any resolution focused on prosecution is to uphold and affirm the obligations related to fair trial and due process. In parallel, screening and assessment, which was recognized as necessary under UNSCR 2396, needs to be firmly evidence-based and human rights/rule of law-compliant given the grave risks of discrimination and adverse consequences that follow from their widespread use. If this resolution were to fail to address this sine qua non of prosecution, it might appear that some States are most interested in getting around inconvenient rule of law-compliant accountability. It should worry us all if States are using the Security Council as a means to circumvent domestic constitutional law obligations, the common law rules of fairness, and long-established criminal procedure standards in civil law systems by mandating new ways to do terrorism prosecution by Security Council fiat.
As I have continually stressed, in my capacity as special rapporteur, the Security Council’s encroachment on domestic criminal law prerogatives in the counter-terrorism arena is without comparable regulatory precedent, and ought to raise alarm bells for all States and other stakeholders. When the fiat of the “10+5” functions to weaken domestic judicial and prosecutorial independence, encroaches on the appropriate role of national legislatures to regulate criminal conduct and penalties in line with international standards, and disables domestic legal systems in setting their own balances on prosecution versus non-custodial or other measures, the rule of law and human rights suffers across the globe. Stating the obvious, such fundamental compromises on the rule of law may be counter-productive to the long-term security of States. Moreover, any resolution that might seek to weaken the evidential standards or give undue weight by Security Council fiat to intelligence or military evidence is problematic. A move away from generally accepted processes of evidence weighting, probative value, and the ordinary rules of evidential procedure that have been tried and tested in national legal systems over decades, does a disservice to the rule of law as a grundnorm of national and international criminal law.
Third, there is a pressing need to recognize the status of children as victims of terrorism, and then to follow through on that acknowledgment with actions to protect them. States consistently pay lip-service to the victims of terrorism. Without exception, they exhort the values of solidarity, acknowledgement, remedy, and obligations (in theory). With some notable exceptions in repatriating (see also Ireland, Tajikistan), children born to parents who were members of terrorist groups, or mothers who were associated with or coerced by terrorist groups, have been placed in a category of the “unchild,” abandoned to a life of harm, violence, and abject material deprivation in camps in northeast Syria. The ease of such abandonment and the vigorous defenses of it continue unabated with a cynicism that is apparently unbounded. This resolution will be useful if it makes clear that all States have obligations under the Convention on the Rights of the Child, and the Optional Protocol on Children in Armed Conflict, and that children are primarily to be treated as victims of terrorism. Children accompanying foreign fighters should only exceptionally be subject to criminal sanction (and in those cases in line with juvenile justice standards) that the best interest test should be the operative basis to regulate the rights and needs of these exceptionally vulnerable minors. To do otherwise is to make a mockery of the language of victimhood, to eviscerate the child from the category of victims, and to undo decades of work on advancing non-discrimination norms and practice for the most marginalized children.
Fourth, this resolution would make a significant contribution to the long-term and successful regulation of the foreign fighter phenomenon by recognizing that while criminal process for the most serious crimes is a worthy and necessary objective, other tools will be needed to manage the scale of the accountability gaps in the Islamic State’s campaign of violence. By way of comparison, looking to the post-conflict accountability outcomes in Bosnia and Rwanda — where the Security Council was prepared to authorize and States fund decades of criminal process — the absolute number of criminal trials remained small relative to the scale of harms and injuries. The Security Council will do no favors for terrorism victims by presenting a Pollyanna view of what is possible in terms of accountability. This is not a compromise on accountability, but it means that transitional justice measures where appropriate must be an equal partner in the accountability space, including truth processes, amnesty, reparations, acknowledgment, memorialization, and rehabilitation. The five permanent members of the Security Council should know through decades of staring down post-conflict conundrums that States need the full array of legal tools to manage the end of conflict. Categorical directives to prosecute terrorism crimes fully in settings that have barely functional legal systems is a recipe for incompetence, unfairness, and, in the long-term, counterproductive to security.
Finally, this resolution offers the opportunity for States to do some positive things. In part, these positive things could reverse the negative cycle of counter-terrorism resolutions that overreach, that fail to acknowledge fully the totality of States’ human rights obligations, and that may, in fact, contribute to making the security we all seek more elusive on the ground. For example, building on UNSCR 2462 and UNSCR 2482, this would be a good moment to include a meaningful humanitarian safeguards clause in a resolution focused on foreign fighters to enable impartial humanitarian organizations to work in the places where we need them most. It would be an opportune moment to affirm that many women have been victims of trafficking and are victims of terrorism and have rights-based claims. It would be a good time to go beyond the ritualistic invocation of human rights and humanitarian law and spell out precisely which human rights and humanitarian law norms-compliance is demanded of States (a spoiler: fair trial, non-refoulement, freedom from torture, inhuman and degrading treatment). It would be a prescient time to protect persons from statelessness and reaffirm the prohibition of arbitrary deprivation of nationality and show integrity on the protection of rights in a counter-terrorism context.
In the end, the last thing we need are rhetorical invocations that serve only to further empower the gargantuan counter-terrorism architecture at the United Nations. The continued adoption of resolutions that fail to grasp that without the engagement of an “all of UN” approach in counter-terrorism, which meaningfully includes human rights and other entities in the work (OHCHR, UN WOMEN, UNHCR, UNICEF), signals there is no security or peace guarantee ahead of us.