This week in New York, another 20th anniversary commemoration related to the Sept. 11, 2001, terrorist attacks in the United States will take place — the U.N. Security Council’s adoption of Resolution 1373 on Sept. 28, 2001. With far-reaching impact on the past two decades of counterterrorism practice, it imposed a set of legal obligations on all countries to take action against terrorism and established a Security Council body – the Counter-Terrorism Committee (CTC) – to monitor implementation of the resolution around the globe. In addition to catalyzing a wide range of national counterterrorism activities, it served as the foundation of what has become a sprawling international counterterrorism architecture. Yet, it did all of this without ever defining who is a terrorist.
Speaking in the weeks following the 9/11 attacks, the CTCs first chair, U.K. Ambassador Jeremy Greenstock proclaimed: “Increasingly, questions are being raised about the problem of the definition of a terrorist. Let us be wise and focused about this: terrorism is terrorism … What looks, smells and kills like terrorism is terrorism.” It was therefore left it up to each country to make that determination on its own, and neither the Security Council nor the CTC has ever publicly questioned any such determination.
While this year’s daylong event today will highlight some of the perceived achievements of the resolution and the CTC, those involved should not lose sight of a significant unintended consequence of decisions taken by both the Security Council and the CTC in the aftermath of 9/11. The U.N. Special Rapporteur for the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (UN Special Rapporteur) recently described that consequence as “the systemic domestic exploitation of counter-terrorism frameworks that emerged in the aftermath of 9/11 to repress and violate rights domestically,” with some governments pointing to Resolution 1373 as justification. (I am co-leading an outside assessment by the Fourth Freedom Forum and the Soufan Center of 20 years of Security Council counterterrorism practice — to include the impact of the resolution and the committee. The project is funded by the European Union and the Dutch, German, and Swiss governments.)
Resolution 1373 did not define terrorism for a simple reason: the Security Council wanted to respond quickly following the 9/11 attacks, and trying to reach agreement on a definition risked importing divisive debates over the definition (largely centered on the age-old adage: “one man’s terrorist is another’s freedom fighter”) that had bogged down the U.N. General Assembly legal committee’s work on a comprehensive convention against terrorism since the mid-1990s. One commentator at the time said the resolution “was possible only because member states did not have to tackle the issue of defining terrorism. Many among those voting for the resolution did not see eye to eye with the U.S. on such a definition.”
Writing 18 years ago from the perspective of a member of the CTC, I wondered whether the committee would be able to avoid the potentially explosive issue of the definition over the long term. I thought it was possible that a government might adopt an overly restrictive interpretation of the resolution, e.g., not applying it to cover the acts of groups that the overwhelming majority of CTC members believed constituted terrorism. It does not appear to ever have confronted such a situation. In fact, rather than the anticipated reluctance of certain member states to apply the Security Council’s counterterrorism framework at home, the opposite has occurred: an overly zealous approach from a growing number of member states. The result has been a plethora of human rights violations that have been well-documented, with understandable concern from U.N. experts as well as non-governmental human rights groups.
Authoritarian and Other Abuse of the Resolution
Authoritarian and other regimes – from Kenya to the Philippines, from Turkey to Egypt to Saudi Arabia, from China to El Salvador — have taken advantage of the lacuna and of the CTC’s inability to rein in how countries apply counterterrorism measures to legitimize the use of their expansive and repressive counterterrorism frameworks against political opponents, human rights defenders, and journalists. The U.N. secretary-general has recently pointed out that “[g]overnments, often operating under overly broad definitions of terrorism, abuse new technologies to curtail basic freedoms of media and civil society groups.” The irony here, of course, is that despite the secretary-general’s rhetoric, the CTC and the wider U.N. counterterrorism architecture seem powerless to slow — let alone reverse — this trend.
In fact, one of the lessons of the past two decades of counterterrorism practice is that, far too often, counterterrorism measures have exacerbated rather than mitigated the threat, whether by being applied expansively or by being implemented in an overly aggressive manner by poorly trained security forces. The U.N.’s own research has pointed out that this has been a key driver of radicalization and violence, and the situations in Afghanistan, Somalia, Yemen, and the Sahel have laid bare how more counterterrorism measures have yet to produce less terrorism.
Despite this, the CTC has continued to march forward, pressing all member states to implement the counterterrorism requirements of Resolution 1373 and numerous follow-on counterterrorism resolutions as well. The impact of 1373 can be seen in the more than 140 national counterterrorism laws adopted, dozens of national fusion centers or other counterterrorism coordination mechanisms established, and counterterrorism-related security capabilities of most countries strengthened (for good in some cases, most definitely for ill in others).
Helping Exacerbate the Threat?
This begs the question, particularly given the above-mentioned lesson, as to whether Resolution 1373 and the CTC are, in fact, contributing to the exacerbation of the threat. The independent assessment will endeavor to help answer this question. More fundamentally, however, as the U.N. gathers this week to commemorate the 20th anniversary of adoption of Resolution 1373 and the establishment of the CTC, it should also reflect on the implications, both for the Security Council and the wider United Nations, of continuing down the same path going forward.
An agreed definition in the U.N. General Assembly is unlikely to emerge anytime soon, given the unresolved Israeli-Palestinian conflict, which fuels the age-old debate over whether those perceived to be fighting against “foreign occupation” should be considered terrorists. Further, and for similar reasons, a Security Council attempt to adopt its own definition is likely to meet the same fate it met when it tried and failed to do just that in 2004 due to objections by the two members of the Organization of Islamic Cooperation serving on the Security Council, Algeria and Pakistan, and also because of concerns that the council was usurping the General Assembly’s mandate. Perhaps more fundamentally, China’s and Russia’s presence on the CTC makes it unlikely that the committee will ever be able to rein in governments that use the Security Council’s ill-defined counterterrorism framework as cover for targeting political opponents or civil society, or otherwise abusive counterterrorism practices.
The Security Council did agree in 2009 to establish an ombudsperson’s office at the U.N. to help safeguard the human rights of those seeking to be removed from its al-Qaeda sanctions list, and a number of U.N. member states and human rights groups have called for the creation of an independent oversight office to oversee U.N. counterterrorism programs. However, there is unlikely to be much appetite within the Security Council (and beyond) for creating an office to provide independent review of how individual member states are implementing the dozens of Security Council counterterrorism requirements to ensure the counterterrorism tools are not being misused. One argument against such a step would be that this is the role of the U.N. Special Rapporteur (although her office has few resources, reports to the U.N. Human Rights Council, and is not mandated to report to the Security Council on human rights deficiencies in member states’ counterterrorism efforts).
Given these realities and the history of the past 20 years, the Security Council should resist the temptation to adopt another resolution in response to the latest emerging counterterrorism challenge (e.g., related to right-wing violent extremism or new technologies) that imposes ill-defined counterterrorism obligations on all member states. This represents a dramatic scaling down of its counterterrorism ambitions.
However, at the end of the day, the Security Council’s greatest contribution to reducing the threat of terrorism around the world might rather be to prevent and resolve violent conflicts and promote peacebuilding and other, more holistic approaches. Passing more counterterrorism resolutions is bound to be counter-productive, as they give states ongoing license to violate human rights, a practice the Security Council has shown itself unwilling to restrain.