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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D

Part I Counter-terrorism and The Rule of Law Framework, 3 The United Nations and Counter-Terrorism

Nigel D White

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 February 2020

Subject(s):
Terrorism — Opinio juris — Soft law — Self-defence — Reprisals — Armed forces — Armed conflict, international — Responsibility of states

(p. 54) The United Nations and Counter-Terrorism

Multilateral and Executive Law-Making

1.  Introduction

The United Nations (UN) has come relatively late to the problem of terrorism and the issue of how to respond to it. Early arguments during the League of Nations era that an international court should be created to try terrorists did not succeed, and it was not until the 1960s that the UN turned its attention to the matter when faced with the threat of terrorism. The Cold War approach of the UN to terrorism was to try and tackle the issue in a state-based, consensual manner, reflecting the traditional values of international law.1 The post-Cold War era has witnessed new trends by both terrorists on the one hand, particularly their increasing ruthlessness,2 and governments and international organizations on the other, in the form of executive-led security/military approaches that challenge international legal paradigms. Whilst this executive-led action has not completely replaced consensual, multilateral instruments that take a criminal justice/human rights approach, it poses a number of challenges to the rule of law, especially due to the expansion of more coercive responses, existing alongside consensual ones, which have been accelerated by the events of 11 September 2001 (9/11).

Despite there now being a number of instruments and methods of counter-terrorism, there are still few fixed points in international law concerning terrorism reflected in the lack of agreement over a definition in the draft Comprehensive Convention, (p. 55) examined in Chapters 6 and 7 by Ben Saul and Jelena Pejic respectively. To some extent, this uncertainty is due to the lack of international consensus as to the priorities to be given to the security imperative requiring coercive measures and concern for the human rights of those rightly or wrongly suspected of terrorism. Within the UN, and naturally given the division of competence between the two main organs, the Security Council’s concern is with the security imperative, while the General Assembly focuses its attention on issues of human rights and self-determination, though the demarcation is not always clear. This means that the Security Council should concern itself with human rights as the Charter requires it to act in the collective security sphere in accordance with the purposes and principles of the UN Charter,3 and the General Assembly has competence in matters of peace and security, especially those that raise human rights concerns or constitute denials of the right of self-determination.4

The Security Council and General Assembly are political organs granted broad discretion by the Charter, whose subsequent practice in developing their respective competences has remained largely unreviewed by the principal judicial organ of the UN—the International Court of Justice.5 Nevertheless, bringing such wide political discretion within the rule of law was an issue before the Court as early as 1948, in an advisory opinion on the ideologically-fuelled blocking of membership applications by the permanent members of the Security Council. The Court asserted that even with a hugely political organization such as the UN, political organs and decision-making were subject to the rules contained in the Charter. The Court stated that ‘the political character of the organ cannot release it from the observance of the treaty provisions established by the Charter, when they constitute limitations on its powers or criteria for its judgment’.6 It follows that even the Security Council is subject to the rule of law.

In this chapter the rule of law is taken in the sense used by Jeremy Waldron: ‘The lead idea of the Rule of Law is that somehow respect for law can take the edge off human political power, making it less objectionable, less dangerous, more benign and more respectful’.7 Such a concept can be traced back to ancient Greece, when Plato wrote that ‘where the law is subject to some other authority and has none of its own, the collapse of the state … is not far off’, whereas ‘if the law is the master (p. 56) of the government and the government is its slave’ then the state ‘is full of promise’.8 In the context of protecting the state from internal and external threats such as terrorism, the security imperative should be fulfilled within the law and if exceptional measures are taken these should be exceptional within the law, not exceptional to the law.

In general, it must be borne in mind that human rights laws have flexibility within them that should be able to accommodate security concerns, and that derogation is allowed from a number of human rights in genuine cases of emergency. Also, if terrorist acts are committed during an armed conflict, international humanitarian law has a variety of mechanisms for dealing with it. In other words, the law should be able to accommodate the security imperative that obliges national governments, as one of their basic functions,9 and the machinery of international governance (principally the Security Council), to protect the lives of civilians by effectively tackling terrorism. Within this framework, the chapter tackles a number of core issues in the area of international law and terrorism; issues which highlight the aforementioned tension between achieving security and respecting international law, including human rights. This tension is reflected in the different approaches to counter-terrorism and law-making in the General Assembly and Security Council. The chapter attempts to identify whether a reconciliation of these apparently competing objectives is possible.10

2.  The Cold War and the Establishment of Multilateralism

During the Cold War, international law-making in response to the terrorist threats posed during the 1960s and 1970s was based on a multilateral, criminal justice approach. Thus international legal responses to terrorism both within and outside the UN were achievable but they were limited. In that period international law, in the form of treaties relating to terrorism, generally respected the principles of state sovereignty and non-intervention by specifying crimes (hijacking, seizure of ships, placing on board aircraft explosive devices, attacks on airports, on oil platforms and nuclear facilities, etc), and enforcing the law by means of a number of treaties, some sponsored by the UN, others under alternative ad hoc multilateral fora. This form of law-making has continued in the UN in the post-Cold War era, but has become just one element of a multi-faceted approach which includes much greater law-making, as well as executive action, by the Security Council.11

(p. 57) Treaties are recognized as a primary source of international law,12 and represent the traditional method of making law in order to address international problems. When governments are faced with new problems they cannot afford to wait for custom to emerge, they often resort to law-making through the adoption of a multilateral treaty. Such treaties respect the basic precepts upon which international law is made and international relations are conducted. Treaties are consensual—states can choose whether to ratify them or not. Furthermore, the treaty crimes created are to be enforced by a ‘prosecute or extradite’ formula, meaning that the state holding the suspects can decide whether to prosecute them itself or extradite to states willing to prosecute. With the odd exception, such as the international efforts to try the Lockerbie suspects held by Libya, there is reluctance by the community of states to interfere in the exercise of prosecutorial discretion by the holding state, thereby respecting its sovereignty. In general terms, state sovereignty is also respected by these treaties because the crimes created are to be enforced by national criminal justice systems, not by any international court or body.

Thus terrorism in the Cold War period was largely responded to by the UN and the wider international community by a criminal justice multilateral approach, which established important building blocks for the post-Cold War period. In the Cold War era tackling terrorism by military means was not recognized by the UN and the wider international community, although Israel provided the main exception to this. Israel regularly struck at terrorist targets using military force at a time and in a manner of its choosing, but was normally condemned by the UN for this.13 Similarly, when the United States (US) responded to Libyan terrorism in 1986 by using military force, it was condemned by the General Assembly for breaching international law.14 Thus during the Cold War the UN not only helped promulgate (p. 58) a consensual, multilateral approach to counter-terrorist law-making, it also rejected any alternative military approach by its condemnations, thereby acting as guardian of the UN Charter’s norms on the non-use of force.

The post-1945 world order initiated by the UN Charter removed the concept of ‘war’ from the lexicon of international law. This means that for the norms of the Charter to apply there has to be a ‘threat or use of force’, which is prohibited except for self-defence or action authorized by the Security Council.15 By regularly condemning counter-terrorist military actions as breaches of the jus ad bellum (those rules allowing resort to military force) in the period 1945 to 1989, the UN and the vast majority of states did not accept the idea in law of a continuing war against terrorism or terrorists in which there would be intermittent blows and counter-blows ranging across decades.

In contrast, the post-Cold War period has seen a concerted effort by a number of powerful states to expand the law concerning terrorism, sometimes acting within the UN, but where necessary outside it. This has been done by supplementing, sometimes replacing, the transnational criminal justice approach of the 1960s and 1970s with a collective security, occasionally military approach. Acts of terrorism are seen not just as issues for national and international criminal justice, but as threats to the peace for the Security Council to deal with, and possibly for states to respond to using their right of self-defence. Three specific changes will be highlighted at this stage.

First, starting with the Lockerbie bombing in the late 1980s, the Security Council’s powers under Chapter VII were used as a key to circumvent, sometimes override, the cumbersome and often ineffective treaty machinery of the 1960s and 1970s. In 1992 the Security Council imposed measures on Libya designed to force it to hand over the two Lockerbie suspects, in effect overriding the extradite or prosecute formula in the Montreal Convention 1971, which covered the offence of placing on board aircraft an explosive device. The Security Council’s powers have since been used more widely against states and individuals, and have also taken on a wider law-making aspect by requiring states to combat terrorism in a number of ways. Secondly, the military response to 9/11 saw a concerted effort to reform the right of self-defence in relation to the invasion of Afghanistan in 2001, and less convincingly in relation to the invasion of Iraq in 2003. Finally, the vision of a continuing war with an open-ended right of defence against terrorism seemed, at least for a period, to have gained some credence with the invocation of the ‘war on terror’.

Overall, counter-terrorist law-making and law enforcement in the post-1945 period has ranged from the relatively limited but widely supported responses to the (p. 59) terrorism of the 1960s, to much broader and more controversial legislative, military, and penal responses of the post-Cold War, post-9/11 era. It is not easy to evaluate whether there is a consensus in the UN and its Membership for some or all of these changes. There is a recognition that the legal regime developed during the Cold War was too weak, but that does not mean that changes either made or contemplated have all been accepted by the UN, nor does it mean that they have increased the effectiveness of the international response. Some of the developments seem to be positively welcomed, others are met with silence. While dissent is not all that prominent in many of the new areas, it might be questioned whether silence can amount to acceptance in a climate of fear—fear of being the target of terrorism, but also fear of being seen to be on the side of the terrorists.

3.  The UN and The ‘War on Terror’

Though the use of the term ‘war on terror’ emanates from certain states, it is important to evaluate the UN’s response to this development, in particular whether it has moved away from its condemnatory stance towards military responses of the Cold War period. In other words, it is necessary to evaluate whether the UN is accommodating an additional component to its counter-terrorist response founded on criminal justice.

On one level the phrase ‘war on terror’ can simply be seen as a non-technical or rhetorical one used by political leaders in the same vein as ‘war on drugs’ or ‘war on poverty’. However, because terrorism involves armed violence, and therefore is closer to war in a literal sense, there is a temptation to view it as having a deeper, legal meaning. Indeed, this is the perception created by President Bush when he declared ‘war on terrorism’ in the immediate aftermath of 9/11, namely that there is a continuing state of hostilities similar to other major conflicts or wars, though the nature of this new conflict was at the same time very different.16 The picture portrayed is of a violent war or ‘hot’ war, in contrast to the ‘Cold’ War, which was symbolized by confrontation without violence (at least between the superpowers). The reality is that while the superpowers did not clash directly, many people lost their lives in ideologically fuelled wars in Indo-China, Africa, and Latin America during the Cold War, losses that far eclipse those suffered during the current ‘war on terror’. Nevertheless, the period of the ‘war on terror’ from 2001 marks the highpoint of the military/security response to combating terrorism. Though the US and the United Kingdom (UK), the main state-protagonists, have toned down their rhetoric with changes in government, military involvement against the Taliban (p. 60) and al Qaeda has been escalated in Afghanistan and has spread to Pakistan. Similarly, targeted killings using remote-controlled drones, administrative detentions of terrorist suspects and their illegal rendition—all aspects of the ‘war on terror’ in the immediate post-9/11 era—have continued to be practised, culminating in the killing of Osama bin Laden on 1 May 2011, an act characterized by the US Attorney General as an attack on a lawful military target.17

Legally speaking, invoking the concept of ‘war’ in the 21st century is both problematic and counterproductive. In the 19th century there was a developed doctrine of ‘war’ in international law which required formal declarations, but this was swept away in 1945 with the UN Charter prohibiting the threat or use of force by states (the jus ad bellum), and the Geneva Conventions of 1949 using the phrase ‘armed conflict’ to signify the conditions when international humanitarian law would apply to protect the wounded, prisoners of war, and civilians (the jus in bello). While declarations of war might remain necessary for a few states to satisfy internal constitutional laws, in international law the doctrine of ‘war’ was thought to be dead. However, the constant usage of the term in the phrase ‘war on terror’ could be seen as an attempt to revert to some older legal order, to signify that it is not necessary to analyse each terrorist attack and the response to it in terms of whether the response was a legitimate exercise of self-defence; instead the blows and counter-blows are simply seen as part of a continuing war.18 If the ‘war on terror’ is seen in this light, then the rules of the UN Charter regulating the use of force by states do not apply. The stage where the law against war (the jus ad bellum) is applicable has been passed.

In the case of Israel, though the precise legal arguments are more complicated and depend upon an examination of the various armistice and peace agreements governing the area,19 the perception is that there has been a prolonged state of war against surrounding states over different periods, and against different terrorist organizations (the PLO, Hamas, Hezbollah, etc), allowing Israel some leeway in which to pick and choose when it decides to take military action to combat those that use or threaten force against it. However, though theories of ‘accumulation of events’ have been put forward to justify so-called ‘defensive reprisals’ in response to a series of pin-prick assaults,20 when engaging in major uses of force, for instance against Lebanon in 2006, Israel relies on arguments of self-defence.21 Thus Israel’s situation is not a clear precedent for a continuing ‘war on terror’, besides which the circumstances of the creation of Israel, and the continuing denial of the Palestinian right to self-determination, make it difficult to draw generalized precedents. Furthermore, there (p. 61) was no acceptance of any concept of a continuing war since the inception of the UN Charter in 1945. But if this argument were to be adopted by the US and UK since 2001 then, de facto, the ‘war on terror’ probably stretches back to the attacks on the USS Cole in 2000, US embassies in Africa in 1998, and the World Trade Center in 1993, and may stretch on not only until al Qaeda has been defeated, but possibly also international terrorism more generally as the war keeps widening.

If the vision of a continuing war is correct, then the applicable legal regime is the law of war (the jus in bello), which regulates the types of weapons used and the targets chosen as well as protecting civilians and non-combatants.22 It might be argued that the US detention of what it terms ‘unlawful combatants’ at Guantánamo Bay fits in with this vision, though the US has adopted what at best could be called ‘unorthodox’ interpretations of the Geneva Conventions in terms of the categorization of detainees;23 at worse, such interpretations have resulted in the commission of serious breaches of human rights law and international humanitarian law in terms of the treatment of detainees while in detention (for instance, by the use of the simulated drowning interrogation technique known as waterboarding).24 Despite transgressing humanitarian law, the intention presumably is that this new type of prisoner of (the) war (on terror) can be detained indefinitely until the ‘war’ is over. Whether the war is the continuing conflict in Afghanistan (increasingly spilling over into Pakistan), where most of the detainees continue to be captured, or whether it is the wider ‘war on terrorism’ is unclear, probably deliberately so, adding to the uncertainty of the period of detention. Though the Obama Administration wishes to close Guantánamo by trying some detainees before special military commissions (with reduced due process guarantees, and with fewer restrictions on admissible evidence),25 and some before US courts, it is likely that there will remain some prisoners who may possibly be transferred to US prisons where they will be detained indefinitely.

The vision of a continuing war is also used as a cover for targeted killings of suspected terrorists, for example the use of a remote drone by the US on suspected terrorists (p. 62) in Yemen in 2002;26 the greater use of such weapons by the US in Pakistan from 2008 onwards; and the developed Israeli practice of targeted killings in the occupied territories against terrorist leaders.27 If in a state of war against a terrorist enemy, these can be seen as lawful targeting of enemy combatants; if in a state of peace, they are extra-judicial killings that violate human rights law, particularly the right to life and the right to a fair trial.28

Powerful states combating terrorism may view the invocation of a continuing war not only as a useful rhetorical tool, but also as a legal justification for pursuing the policies outlined above, despite there being limited evidence that the idea of a ‘war on terror’ has been accepted in a technical international legal sense. Although a device that brings some short-term benefits in terms of giving an excuse, but not ultimately a convincing one, for by-passing normal human rights standards, in the longer term its continual invocation will undermine the principles of the UN Charter and the objectives behind those rules.

The problem is that the UN (especially the General Assembly) has not maintained its role as guardian of the Charter by, for example, condemning targeted killings as a breach of the UN Charter rules on the use of force as a violation of human rights. There is no doubt that the General Assembly has such competence, but its failure to exercise it is profoundly disappointing.29 In its annual resolutions of ‘measures to eliminate international terrorism’, the General Assembly reaffirms that international cooperation and state actions to combat terrorism ‘should be conducted in conformity with the principles of the Charter, international law and relevant international convention’, while urging states ‘to make best use of the existing institutions of the United Nations’ in their efforts to prevent international terrorism.30 While better than nothing, such general statements do not draw clear lines between what is lawful and what is not. Without that community response to violations of the law, the law’s legitimacy is undermined though it may remain formally binding. If powerful states can use force without any consequence or challenge, then the rule of law is not being upheld.

One of the reasons for the development of the post-1945 jus ad bellum—that force is prohibited except in self-defence in response to an armed attack, or if authorized by the Security Council—is to stop conflicts escalating, with each blow being followed (p. 63) by an even more devastating counter-blow.31 There is a clear danger of this if it is accepted that there is a continual state of war. Arguably it has already happened with the invasions of Afghanistan and Iraq being sparked by the attacks of 9/11. Despite this, there is insufficient evidence of any clear legal belief by the majority of governments, or what international lawyers term opinio juris, that the fundamental rules of the UN Charter have been discarded or at best radically modified. In international relations it remains accurate to state that there is no global state of war, rather legally speaking a time of peace, though a peace that is ruptured by terrorism and by other acts of international violence as well as by localized armed conflicts, such as that found in Afghanistan since 2001. Outside that armed conflict, this means that each terrorist attack or threat of attack must be evaluated individually in terms of whether a forceful response is justified, and each response must be proportionate to the attack or threat of attack. While this remains the law, the failure of the UN to support it signifies that the rule of law, whereby all states, powerful or otherwise, are subject to community rules is not being respected.

Of course this does not stop the UN and states from continually trying to tackle international terrorism in other ways, by means of cooperation and enforcement in matters of criminal justice. But the ‘military paradigm’, as opposed to the ‘criminal justice’ paradigm, should be the exception and not the rule. That this was the consensus before 9/11 is reflected in the widely cited 1994 General Assembly Resolution on Measures to Eliminate International Terrorism, which stated that terrorism ‘may pose a threat to international peace and security’.32 The implication is that the collective security apparatus of the Security Council, predicated on a determination of a threat to the peace or breach of the peace, is not to be seen as an automatic response to terrorism. Bearing in mind that the use of force by a state is triggered in much narrower circumstances than the UN’s collective security system, the exceptional nature of the ‘military paradigm’ is made clear, but the period of the ‘war on terror’ has eroded this position de facto if not de jure.

In contrast, during the post-9/11 era the Security Council has in effect determined that all acts of international terrorism are threats to international peace and security.33 Making such a general determination in the absence of evaluating each terrorist act seems to be an unnecessary escalation, but it does not necessarily mean that the Council is reinforcing the ‘war paradigm’; indeed, it has mainly used its non-forcible Chapter VII powers in response to terrorism, and has not yet authorized military action. Thus it can still be contended that, the actions of a handful of powerful states apart, there is insufficient evidence to suggest that there is a significant move away from the 1994 consensus that military force should only be used to combat terrorism when absolutely necessary.

(p. 64) 4.  The UN and State Sponsored Terrorism

While the ‘war on terror’ is being waged against non-state actors, it must not be forgotten that states themselves have often engaged in terrorism, either directly through their military, para-military, and police forces, or through sponsoring or harbouring terrorist groups such as death-squads, or those responsible for kidnapping and disappearances. The General Assembly has adopted rules on state responsibility which determine whether the unlawful acts of individuals or groups can be attributed to the state.34 A state that sponsors terrorism can be held responsible for its support depending upon the level of that support. If it commands or controls the terrorists (as may be the case with the Sudanese Government and the Janjaweed), then the acts of the terrorists themselves are attributed to the state, in other words they are acts of state. However, if the level of support falls below that (for example, by harbouring terrorists on its territory, arguably the relationship between the Taliban Government and al Qaeda before the US-led invasion of 2001), then while it is not responsible for the acts of the terrorists it remains responsible for harbouring them, or for failing to act diligently to tackle them.35

Turning to the consequences of state sponsorship—if the sponsoring state is effectively in control of the actions of terrorists, then the state targeted by the terrorists can take non-forcible action against it, and can treat any attack against it by the terrorists as an attack by the sponsoring state. Under the law of self-defence, the target state can therefore take proportionate and necessary action against the terrorists and the state in control of them. Whether military action can be taken against a state that is not in control of the terrorists but does harbour them or fail to deal with them, will be considered in relation to the issue of whether the law of self-defence has been extended in the light of recent practice. Harbouring terrorists who launch attacks in another country is a breach of international law, both of the norm prohibiting the use of force and the norm of non-intervention.36 Self-defence aside for the moment, those states that are victims of the breach are entitled to undertake a range of responses in line with the law of state responsibility, including demands for cessation, reparation, and proportionate non-forcible counter-measures, until the breach has ended.37

(p. 65) State sponsors of terrorism can also be dealt with by the Security Council if it deems that such activities constitute a threat to international peace and security. The Security Council has the power under Chapter VII to impose sanctions and to authorize military action against state sponsors of terrorism, and it is not limited by the relationship between the host state and the terrorists. Thus far it has confined itself to non-forcible measures under Article 41 UN Charter. Regarding more direct forms of state terrorism, if a state’s armed forces commit acts of terrorism during an armed conflict then they are governed by the provisions of international humanitarian law.38 The whole of the Fourth Geneva Convention protects civilians and their property in times of armed conflict and occupation; while during peace time, acts of state terrorism committed by agents of the government (army, police, etc) is governed by human rights law, which protects basic rights such as the right to life and freedom from torture, which even in emergencies threatening the life of the nation cannot be derogated from.39

Thus there are clear rules of international law governing state sponsored terrorism and more direct forms of state terrorism. To this extent it can be argued that there is no pressing need to develop a separate law of terrorism governing state activities since there exist relatively clear rules on the use of force, on non-intervention, on humanitarian law, and human rights law, which between them cover the ‘terrorist’ activities of states. However, there are a number of weaknesses in the legal framework outlined above in addition to the problem that pervades much of international law—that of enforcement of its norms.

The first weakness is a lack of clarity on the issue of when states can respond by military means to a terrorist threat. This will be reconsidered later. Secondly, there is unwillingness amongst states and the UN to recognize that support for terrorism can be a state crime. The international community has recently moved away from the idea that states can be criminals because in simple terms they cannot be locked up, and because of the influence of the Nuremberg Tribunal that said ‘crimes are committed by men, not by abstract entities’.40 In the recent Articles on State Responsibility adopted by the General Assembly in 2001, the language is one of serious breaches of fundamental norms, when previous drafts had spoken of state crimes such as aggression and genocide.41 In some ways this is a retrograde step, because recognizing that states can commit international crimes arguably is of greater consequence than if such breaches are not so viewed. In general, stigmatizing some state actions, such as (p. 66) sponsoring terrorism, as an international crime is a clear way of identifying international pariahs and taking collective measures against them.42

Thirdly, Security Council action is discretionary and cannot be taken against permanent members because of the veto. The Security Council is at best a flawed instrument of justice and at worse a disconnected witness to major atrocities. Reform of the Security Council is a pressing concern, but very little was achieved at the UN’s World Summit in 2005, apart from a watered down concept of a responsibility to protect concept, ultimately to be exercised by the Security Council in cases of genocide and crimes against humanity.43

When confronted with state terrorism or state sponsored terrorism the UN has again failed consistently to uphold those norms that it has been responsible for promulgating. With the exception of pariah states, such as Libya and Sudan, states engaged in ‘terror’ campaigns against their own population or parts of it (for example, in Chechnya or Sri Lanka) have escaped censure as Member States generally see the advantages of concentrating counter-terrorist measures against non-state actors. While there is no doubt that non-state actors represent a significant element of the modern terrorist threat, to ignore issues of state involvement and responsibility means not only that only part of the threat is being addressed, but also signifies that the UN is not prepared to uphold and apply norms prohibiting acts of terror against both state and non-state actors. Such inconsistency undermines the legitimacy of the UN’s counter-terrorist regimes.

5.  From Criminal Justice to Collective Security: Non-State Actors and Terrorism

The current focus of international and UN concern is on the threat of international terrorism by non-state actors such as al Qaeda. However, even before that threat emerged in the 1990s, there existed numerous treaties starting in the 1960s directed against a range of terrorist acts, a process that continued after 9/11. In general, these conventions have followed a similar pattern by requiring states parties to criminalize such behaviour, and to extradite or prosecute any individual within their jurisdiction suspected of such a crime. The crimes are defined in a way that is familiar to domestic criminal law, for example the Montreal Convention 1971, which states, amongst other things, that ‘any person commits an offence if he unlawfully and intentionally … places or causes to be placed on an aircraft in service … a device or substance which is likely to destroy that aircraft …’.44 Interestingly, there is no reference to terrorism (p. 67) in the substance of the definition. Taking the suppression conventions on terrorist acts together, Saul comments that ‘most of the physical conduct widely considered as terrorist in nature is now prohibited’.45

In addition to the conventional framework, the Security Council has built on its actions against Libya starting in 1992, designed to coerce the Libyan regime into handing over the two individuals suspected of the 1988 Lockerbie bombing. From this point the Security Council has concerned itself with international terrorists, increasingly taking action against individuals and organizations (especially al Qaeda and the Taliban), by listing them and requiring states to take measures against them, including the freezing of their assets.46 These and the more general anti-terrorist law-making activities of the Security Council that started after 9/1147 will be reviewed more fully below.

Turning to the weaknesses of the international legal framework for dealing with non-state actors involved in terrorist activities, it can be seen that the suppression conventions rely on national systems to criminalize and prosecute individuals suspected of committing treaty crimes. The ‘extradite or prosecute’ formula is suspect given the general practice of prosecutorial discretion. For instance, the Lockerbie bombing of 1988, when an explosive device was placed on board a PanAm flight, destroying it over Scotland, was clearly a crime under the Montreal Convention 1971. Under the Convention, Libya, the US, and the UK, all parties to the treaty, claimed jurisdiction over the offence under the treaty—the US because it was an American plane, the UK given the explosion occurred in Scotland, and Libya because the two Libyan suspects were in Libya. Libya decided to prosecute the two suspects itself and not to extradite, clearly revealing the serious weaknesses of the suppression conventions in that the state with primary jurisdiction was the very state behind the act of terrorism.

In an attempt to address this weakness, the US and UK approached the Security Council and persuaded it to take non-forcible action against Libya to force it to hand over the two suspects.48 The sanctions regime was directed against Libya, but its purpose was to intervene in the flawed criminal justice system set up in the Montreal Convention. In effect the Security Council was trying to override the Montreal Convention, using its mandatory powers under the UN Charter,49 in combination with the priority that states should give to obligations arising under the Charter when they conflict with other treaty obligations.50

(p. 68) There is no doubt that the suppression treaty regimes are flawed, the Lockerbie cases show that. The fact-scenario in that case will not be unique since in instances of state-sponsored terrorism the suspects are very likely to head home after the attack has been carried out. To make the treaties work effectively there needs to be supervision of the obligation to extradite or prosecute so that states do not hide behind lacklustre investigations and prosecutions. Under the auspices of the International Civil Aviation Organization (ICAO), a UN specialized agency, the Beijing Convention and Protocol were adopted on 10 September 2010, showing that the international community recognizes the need to strengthen the existing framework, but those efforts still fall somewhat short. These new instruments, when in force, will replace and amend the Montreal and Hague Conventions of the early 1970s respectively. Amongst other strengthening measures, they include a wider range of offences, including the use of aircraft as a weapon, and they extend the jurisdiction of states parties to include the nationality of the offender. Though this may improve the prosecution of terrorists, it is worth pointing out that it would not have helped in the Lockerbie scenario where the suspects were Libyan nationals present in Libya. It is important to note though that the new instruments require such states to assert jurisdiction over their nationals, removing some of the discretion mentioned above.51

Arguably, until the suppression conventions are further improved by including supervision within them, the Security Council should be allowed to override them in extreme cases where terrorism has reached the level of a threat to the peace, which has been labelled ‘hyper-terrorism’,52 although, as has been seen since 9/11, it has in any event moved towards categorizing all acts of terrorism as threats to international peace. Furthermore, the Security Council has directed its measures more precisely against those individuals and organizations undertaking or supporting terrorist activities, principally by the use of targeted measures reviewed below. In effect the international community’s response to terrorism now includes a collective security element centred on the Security Council, addressing certain states for their support of terrorism, but primarily directed at non-state actors.

6.  The Role of the Security Council

Looking in more detail at this pivotal body, in the 1980s the Security Council confined itself to condemning certain terrorist acts committed by non-state actors.53 (p. 69) It continued this practice in the post-Cold War period,54 but it also adopted measures against states—in 1992 against Libya for its support for international terrorism and for its harbouring of the two Lockerbie suspects,55 measures which ended in 2003; and against Sudan in the period 1996–2001, for Sudanese support for terrorism and for harbouring individuals suspected of the assassination attempt on the President of Egypt.56

6.1.  The Security Council and Criminal Justice

Since the end of the late 1990s, as the threat of international terrorism has emerged, the Security Council has developed a targeted sanctions regime involving the freezing of funds, assets, resources, and freedom of movement of individuals and organizations suspected of terrorism or supporting terrorism. Given that individuals are targeted and ‘punished’ for their membership or support of terrorist groups, this appears to be a parody of criminal justice, without due process or appeal; the merging of collective security and criminal justice. Recently, such measures have been adopted against those involved in the assassination of Lebanese President Rafiq Hariri in 2005 (followed by the establishment of a Special Tribunal);57 but even before 9/11, such measures were adopted against the Taliban and al Qaeda58 following the 1998 African embassy bombings. The 1267 (Taliban and al Qaeda) Committee has listed entities and individuals as associated with the Taliban and al Qaeda. Under this regime there is an obligation on states to freeze the assets of the individuals and entities listed, and to impose travel and arms embargoes. In 2004 the Security Council set up the 1566 Working Group to recommend practical measures against individuals and groups,59 though it has thus far failed to achieve consensus on extending the listing process beyond the Taliban and al Qaeda.60

There have been extensive debates on whether Resolution 1267 overrides the human rights obligations of states due to a combination of Articles 25 and 103 UN Charter. (p. 70) In its 2003 Declaration on Combating Terrorism, the Security Council, meeting at the level of Foreign Ministers, declared that states ‘must ensure that any measure taken to combat terrorism comply with their obligations under international law, and should adopt measures in accordance with international law, in particular human rights, refugee and humanitarian law’.61 This amounts to institutional opinio juris to the effect that mandatory Security Council resolutions demanding that the assets of named individuals be seized do not require or enable states to by-pass their human rights obligations, but it says nothing about the human rights obligations on the Security Council. What it does mean is that assets must be frozen and other measures taken against individuals in accordance with the human rights obligations of Member States, including those arising under a regional treaty. The lack of adequate human rights mechanisms at the Security Council level does not mean that they are also rendered inapplicable at the domestic or indeed regional levels by means of a Security Council resolution.

The Security Council must accept that each state, or indeed regional organization, will incorporate its decisions while respecting the states’ human rights obligations under both treaty and customary law. In its Kadi judgment of 2008, the European Court of Justice found that the European Union’s incorporation of obligations under the targeted sanctions regime initiated by Security Council Resolution 1267 (1999) violated European fundamental rights of Mr Kadi, who had been listed by the Council’s 1267 Committee and therefore had his assets frozen without recourse to a remedy. Nevertheless, the Court gave the European bodies the chance to redraft the regulations in a way that was human rights compliant.62

Prolonged arbitrary detention of terrorist suspects rather than the seizure of their assets was the issue before the UK House of Lords in the Al-Jedda case of 2007,63 and so the Court had to consider the extent to which the right to liberty and security of person under the European Convention on Human Rights (ECHR) was overridden by Security Council Resolution 1546 (2004) on Iraq. Mr Al-Jedda had been detained in a British detention centre in Iraq without charge or trial for several years for ‘imperative reasons of security’ in that he was a suspected terrorist, an undeniable breach of his rights under Article 5(1) ECHR.64 The Court felt that the only way of interpreting Resolution 1546 was to permit the UK, in fulfilling its security imperative, to override Mr Al-Jedda’s right to liberty, but only to the extent (p. 71) necessary to achieve security.65 Lord Carswell gave the most far reaching judgment in this regard when he stated that the power to intern may lawfully be exercised by the UK, but only in such a way as ‘to minimise the infringement of the detainee’s rights’ under the ECHR.66 In particular, he identified a number of safeguards including ‘the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons’.67 Clearly in implementing the executive laws promulgated by the Security Council at international level, Member States must be careful to respect the human rights of individuals affected by such measures, bearing in mind that the security imperative must be exercised within the law.

From its sanctions against certain states supporting terrorism in the early 1990s and targeted sanctions against individuals in the late 1990s, the Security Council started after 9/11 in 2001 to legislate more broadly on terrorism. Resolution 1373 obliges states to criminalize the financing of terrorism; to suppress terrorist groups; deny refugee status to terrorists; prevent the movement of terrorists; bring terrorists to justice; and establish terrorist acts as serious domestic crimes. It did not provide a definition of terrorism (until 200468) which meant that its resolutions were subject to wide interpretation by states in their implementing legislation. Further, it has moved away from making individual determinations of threats to the peace in relation to terrorist acts towards determining that all acts of terrorism (whether international or not) are threats to international peace.69

The implementation of the measures demanded in Resolution 1373 is monitored by the Counter-Terrorism Committee (CTC) through mandatory state reporting. There appears to be a high degree of compliance.70 In 2004 the Council created a CTED (Counter-Terrorism Committee Executive Directorate) to provide the CTC with expert advice, to conduct what are called ‘expert assessments’ of each Member State, and to facilitate, but not provide itself, technical assistance to states.71 In December 2009, the Executive Director of the CTED reported that the ‘closer interaction with member states, including through … visits, has given CTED new insight into how countries are managing their counter-terrorism strategies and policies, the vulnerabilities they are facing and the technical assistance they may require’. (p. 72) Further, he reported that the CTED Global Implementation Survey ‘contains global assessments across the major thematic areas dealt with in the resolution, notably counter-terrorism legislation, border control, law enforcement, countering the financing of terrorism, and international cooperation. It also looks at the field of protecting human rights while countering terrorism.’ He concluded by emphasizing that ‘in our technical assistance facilitation work we are also as a matter of course, encouraging governments to incorporate human rights training in professional training courses related to counter-terrorism, with the aim of ensuring that countries are able to address the challenge of terrorism without compromising fundamental human rights’.72 The 2009 Global Implementation Survey of the CTED identified a range of problems with a number of states in implementing counter-terrorism strategies pursuant to Resolution 1373, principally the lack of any definition of terrorism (or vague and overbroad definitions) in domestic legislation; the practice of torture and ill-treatment, especially at the investigative stage; arbitrary executions; hidden detention; and the practice of returning individuals to states where there is a significant danger of their being tortured in violation of the principle of non-refoulement.73

Resolution 1373 has been characterized as legislative by some commentators, and therefore questionable when considering the Council as an executive body.74 The Resolution was legislative in the sense that it required states to adopt and implement provisions derived from the 1999 Terrorist Financing Convention, thereby circumventing the requirement of consent (the treaty at the time was not even in force). However, by and large, it put the emphasis on states to adopt national legislation which would fulfil the very broad provisions of Resolution 1373. It certainly was not meant to be directly effective supranational legislation, and the evidence is that some states have used its broad terms to justify quite wide ranging internal legislation. Its definition of terrorism in 2004 was too late in some senses to reverse the trend in national legislative provisions and definitions. Between 2001 and 2004 many states put in place new legislation on terrorism based on their own definitions. To ‘legislate’ against terrorism even indirectly as the Council did in Resolution 1373 was very suspect in terms of one of the basic requirements of the rule of law that the behaviour proscribed by the laws be clearly defined.75 Nevertheless, at the (p. 73) time states did not object, but in the long term the illegitimacy of incoherent anti-terrorist laws will lead to disparities in compliance,76 with certain states using those laws for draconian repression, while others refuse to comply because such laws fail to match rule of law standards, including human rights obligations.

6.2.  The Security Council and the Use of Force

The Security Council’s response to terrorism has moved from condemnation to the utilization of its coercive non-forcible powers, first against states and then non-state actors, but it also has the power to authorize military measures. Under the UN Charter there are two exceptions to the prohibition on the use of force—when states exercise their right of self-defence in response to an armed attack, and when the Security Council authorizes military measures.77 However, it is important to note that the military responses to terrorist organizations to date have been taken under the right of self-defence rather than under Security Council authority.78 So, for example, in relation to the US response to 9/11 by using force against Afghanistan in 2001; and the Israeli actions of 2006 against Lebanon in response to Hezbollah attacks, and of 2009 against Gaza in response to Hamas rocket attacks, both the US and Israel invoked the right of self-defence.

Of course invoking the right of self-defence is not the same as the legitimate exercise of this right. It is necessary to look not only at the rules themselves, but also for international acceptance that there was a lawful exercise of the right. The Security Council seemed to recognize the right of the US to use force in self-defence in response to 9/11 in Resolution 1368,79 although it was not without ambiguity.80 In relation to Israel, there was no such endorsement, though it was not until a number of weeks had passed after Israel’s ground offensive into Lebanon that the Security Council united to call for a cease-fire.81 In relation to the three week Israeli offensive in Gaza in January 2009, the Security Council acted more quickly to call for a cease-fire and a withdrawal of Israeli forces.82 There was no Security Council condemnation of these actions, though there was some mild concern about their proportionality and the loss of civilians.

(p. 74) The Security Council can authorize military action in response to threats to the peace and arguably its authority should be sought in instances that do not clearly justify the right of self-defence. However, the arguments over the Iraq war in 2003, when an authorizing resolution was sought but not adopted, show the difficulties of taking a Security Council route to get approval for military measures, though on the facts the invasion of Iraq was not a response to terrorism despite US attempts to link Saddam Hussein to al Qaeda. Sometimes the Council’s reluctance to authorize military action may be due to self-interested vetoes or the threat of them by the permanent members, but on other occasions it might act as a genuine barrier to imprudent military action.

Overall, in terms of collective security, the position at the moment seems to be that while the mechanisms and powers of the Security Council can be used to tackle international terrorism originating from non-state actors, the consensus has not yet reached the point of triggering the collective use of force under Chapter VII of the Charter; rather there has been an acceptance that states may use force in self-defence to defend themselves from terrorism, the precise conditions of which are considered next. Furthermore, despite hyperbolic interpretations of Article 103 as some sort of constitutional trump-all provision, the Security Council itself has recognized that states must respect their human rights obligations when imposing targeted measures, and that the Council itself must have some mechanisms within it to respond to concerns about the legitimacy of targeted measures imposed against individuals, which led to the creation of an ombudsperson at the end of 2009.83

7.  The UN and the Right of Self-Defence

Under the UN Charter, the right contained in Article 51 has traditionally been interpreted to allow for self-defence by one state in response to an armed attack by another, though the text states that the right of self-defence is triggered ‘if an armed attack occurs against a member of the United Nations’, thus not precluding armed attacks by non-state actors nor defensive action in response to them.84

There appears to be wide agreement within the UN’s membership that the response to the 9/11 attack by al Qaeda was the exercise of the right of self-defence in response to an attack by a non-state actor, but there is considerable doubt about how wide that (p. 75) ‘precedent’ is.85 At its narrowest, it might be confined to its facts: a massive terrorist attack against a state by an organization with a past history of attacks on US targets, combined with the promise of further imminent attacks.86 In addition, there was the almost unique strong relationship between the Taliban regime and the terrorists, though neither commanded or controlled the other. Additionally, there existed a strong moral impetus to the response with many references to the ‘evil’ of terrorism.87 Finally, there was a strong condemnation of the attack across international organizations—in the Security Council, the General Assembly, NATO, and the EU.88 In contrast, at its widest the precedent could be distilled to concentrate simply on the threat, no matter how imminent, which was the approach embodied in the National Security Strategy promulgated by President Bush in 2002, which declared that the US would take pre-emptive action in response to a terrorist threat, no matter how remote.89

The future development of the right of self-defence in response to terrorist attacks and threats of attack may lie somewhere between the two poles, and the UN can play a crucial role in this regard in ensuring that it is developed in a way that provides for both clarity and limitations. Arguably the General Assembly should recognize that if there is strong evidence that an armed attack will emanate in the immediate future from a terrorist group found within a state, then it is within the bounds of self-defence that the target state can take anticipatory action to strike at the terrorists before they launch their attack. There must be both strong evidence of planned imminent attack (Iraq 2003 shows how hard evidence, as distinct from intelligence, is crucial), best shown by the fact that attacks have already emanated from there; and then the response must be necessary and proportionate. Necessity must be shown by the fact that the host state cannot deal with the terrorists and the only way of neutralizing the threat is by military means; and proportionality signifies it must be directed against the terrorists, not against the host state unless it comes to the aid of the terrorists.90

(p. 76) Proportionality was violated in Israel’s offensives against Lebanon in 2006 and Gaza in 2009, and arguably in the US-led invasion of Afghanistan in 2001, though the Taliban’s close relationship with al Qaeda meant that it would have been difficult to target al Qaeda alone. However, the fact is that the operation was directed at both from the outset, and has led to the continuing military operation having two prongs—a mainly US-led assault against al Qaeda still acting under the right of self-defence; and an escalating conflict between a UN authorized NATO force (ISAF—dominated by the US) and the Taliban.91 An interesting analogy that would justify limited, surgical, extra-territorial operations against terrorist bases has been drawn with the use of force to protect nationals in danger in another state, practice which has been accepted despite the strict wording of the Charter which suggests any use of force on or against the territory of another state is unlawful.92 Nevertheless, a strong steer from the General Assembly—rediscovering its law-making ability in this area going back to its declarations on non-intervention, friendly relations, aggression, and the non-use of force,93 on the right of self-defence in response to terrorist threat—would serve to keep self-defence from being stretched beyond a specific right subject to the rule of law.

Though the invasion of Iraq in 2003 was legally justified by the UK and US because of a breach of Security Council resolutions,94 American rhetoric in the build-up to the war was that this was to remove Saddam as a threat to the US.95 The general rejection of the legality of the war is in part a rejection of the doctrine of pre-emptive strikes, against either terrorist threats or, as with Iraq, the threat of weapons of mass destruction. The negative reaction to military intervention in Iraq also makes it harder to establish that middle ground mentioned, namely that armed force should be allowed in response to imminent attacks. The consensus that was achieved in the international community after 9/11 was lost in March 2003 with the unnecessary and illegal invasion of Iraq. It will be difficult now to build a true consensus within the UN to allow for anticipatory self-defence in response to threats that have not yet materialized, even imminent threats. Those advocating anticipatory action have to rely instead on the silence of the majority of states as a sign of acceptance. Silence undermines the legitimacy needed for the emergence of a modified norm, when bearing in mind that the prohibition of the use of force is jus cogens.

(p. 77) 8.  The Role of the General Assembly in Achieving a Consensual Legal Framework

Another way of making progress towards producing a general legal framework to tackle terrorism is through non-binding soft law produced by the General Assembly, as opposed to hard, immediately binding, law produced either by a treaty in force or by Security Council resolutions adopted under Chapter VII. There is some tension between the executive and security-driven hard law produced by the Security Council, and the general, human rights focused norms produced by the General Assembly, reflecting their differing (but overlapping) fields of competence described at the outset. However, this section will show that there have been efforts to bring the two together in a more coherent body of UN law.

There is a great deal of such UN soft law on terrorism. Important in this regard is the General Assembly Declaration on Measures to Eliminate International Terrorism, adopted by consensus in 1994.96 The resolution defines terrorism and then declares that the measures agreed upon by states in the resolution must be adopted in accordance with human rights law and include duties on states to: refrain from organizing, encouraging, or tolerating terrorist activities, and to take appropriate practical measures in their territories against terrorists; ensure the apprehension, prosecution, or extradition of perpetrators of terrorist acts, in accordance with their national law; conclude special agreements, bilateral, regional, and multilateral, and develop model agreements on cooperation; cooperate in exchanging information; implement existing treaties and harmonize national laws in accordance with them; and ensure that asylum is not granted to those that have undertaken terrorist acts, and that refugee status is not granted in a manner contrary to these provisions.

General Assembly soft law has been developed, and could be developed much further, to be specific in forms of cooperation: extradition, legal assistance, execution of foreign penal sentences, recognition of foreign penal judgments, transfer of criminal proceedings, freezing and seizing of assets deriving from criminal conduct, intelligence and law enforcement information gathering and sharing, and the creation and recognition of regional/sub-regional judicial spaces.97 For example, if extradition fails and the host state is unwilling to try the terrorist suspects, there should be transfer to a third country. There should be pre-established procedures for this. In addition, states should offer themselves as fair trial venues. A move away from bilateralism (for example, in extradition treaties), towards multilateralism, would improve the (p. 78) legal framework for tackling terrorism,98 as would a general recognition that acts of terrorism (clearly defined at international level) cannot be covered by the political offence exception built into some extradition regimes.99

Furthermore, there is perhaps more compatibility between the soft law approach of the Assembly and the hard law approach of the Security Council than is readily conceded. For instance, Council Resolution 1373 tries to strengthen the types of cooperation pointed to by the General Assembly.100 The Counter Terrorism Committee (CTC) established by that resolution has produced a directory of recommended best practices, codes, and standards in implementing Resolution 1373.101 The CTED also serves as an intermediary for contacts between potential donors of technical assistance and recipients, and maintains an online directory of assistance providers.

In 2006 the General Assembly adopted by consensus the UN Global Counter-Terrorism Strategy,102 which develops many of the measures in its 1994 Declaration, but also takes account of Security Council resolutions and mechanisms, including the CTC (though it calls on it to work with states at their request), and the 1267 Committee (though it calls on it to ensure fair and transparent procedures). This amounts to a general recognition of the Security Council’s actions in this area, but also represents an attempt to balance the Council’s actions with human rights protection, and to emphasize traditional principles such as state consent. The movement of the UN’s Membership towards the Security Council anti-terrorist regime is made clearer in a later Assembly resolution again adopted by consensus, which reminds states of their obligations not only under relevant treaties but also under Security Council resolutions including Resolution 1373, ‘to ensure that perpetrators of terrorist acts are brought to justice’.103 Furthermore, in its annual resolutions on the ‘protection of human rights and fundamental freedoms while countering terrorism’, the General Assembly has made it clear that states must ensure that any measure taken to combat terrorism complies with their obligations under international law, particularly human rights law and international humanitarian law.104 Thus while the General Assembly has failed to condemn states for breaching international law in their pursuit of international terrorists, it has not accepted the argument that anti-terrorist measures adopted at national or international levels (p. 79) can override human rights. Indeed, it reminds states in the aforementioned resolutions that derogations from certain human rights obligations under Article 4 International Covenant on Civil and Political Rights are only exceptional and temporary. Arguably it should have taken this opportunity to apply the same logic to the Security Council.

Generally speaking, the Assembly’s central concern is in protecting human rights, not least through the adoption of a policy of trying to dissuade disaffected individuals from using terrorism by addressing the causes of terrorism.105 The Assembly also puts more emphasis on states tackling terrorism themselves, and less on collective action through the UN, though the UN should help with capacity building for weaker states to combat terrorism by building indigenous law enforcement, intelligence infrastructure, and border patrols to stop terrorist infiltration.106 Despite these encouraging signs, the Assembly needs to ensure that the UN’s values of human rights and justice temper the actions of the Security Council, to ensure that the security imperative is pursued within the whole range of UN values and laws.

9.  Conclusions and Recommendations

The UN has a central responsibility to ensure that counter-terrorism is both effective in tackling terrorism (a burden largely placed on the Security Council), and just (a concern for the General Assembly). There have been some recent signs of such a synergy, but it is a long way from being consolidated. Such a consolidation would ensure the greater legitimacy of counter-terrorism, and place the UN, as the most legitimate representative of the international community, at its centre. The UN would specifically benefit from incorporating the recommendations made below.

In line with the analysis of international law given above, it is recommended that states only resort to force in extreme cases where there is strong evidence of an imminent terrorist attack being launched from another country. This understanding of the law should be accepted by the General Assembly in the form of a declaration on the right of self-defence against non-state actors, and individual actions that come within accepted parameters should receive endorsement from either the Security Council or the General Assembly. The Assembly could also take such an opportunity to affirm that while the jus ad bellum accommodates military action (p. 80) against terrorists in exceptional circumstances, the military paradigm should be used cautiously and sparingly, otherwise the conflict will expand, and a continuing and ever-escalating state of hostilities will ensue.

For less pressing threats of terrorist military action, it is recommended that the Security Council should be informed and should be persuaded to authorize military action only if the threat becomes imminent and the target state is unable to defend itself or otherwise seeks UN help. Otherwise, the Security Council and regional bodies could impose measures short of the use of force, for example targeted sanctions that comply with basic human rights, such as due process against individuals and groups on the basis of a threat to international peace and security. The measures should be calibrated depending on the seriousness of the threat, from requiring states to arrest and try individuals themselves; to requiring them to hand over suspects to a state with jurisdiction over the offences under relevant UN treaties; to imposing sanctions on states and individuals. Overall, this would represent a welcome return to the situation of the Council dealing with individual instances of serious cases of terrorism, rather than taking a more blanket legislative approach, which is a disproportionate response based predominantly on the security imperative, potentially allowing for little or no human rights protection.

In cases falling below the threshold for military/collective security action, it is recommended that states should rely on a mixture of cooperation and lawful coercive techniques (which clearly would not include unlawful rendition flights, the torture, inhumane or degrading treatment of suspects, their prolonged arbitrary detention, or acts in violation of the principle of non refoulement),107 to ensure that suspected terrorists are brought to trial, working within existing bilateral, regional, and multilateral cooperation regimes.

Further, it is recommended that the criminal justice paradigm should be strengthened by the UN and its agencies consolidating the raft of treaties, by agreeing a definition of terrorism, and by accommodating the Security Council within the treaty regime, as has been done within the Rome Statute creating the International Criminal Court.108 A consolidated treaty should not only define terrorism; it should strengthen the methods of cooperation, especially the ‘prosecute or extradite’ formula to ensure strong prosecution or more efficient extradition. Supervision of this obligation should be given to a treaty committee.

It is recommended that there should be recognition that in cases of international terrorism that constitute threats to international peace, the Security Council has a crucial role to play. Security Council activities as regards terrorism should not be (p. 81) seen as by-passing or over-riding the criminal justice approach. The 1267 Committee’s listing of individuals and entities should be a prelude to their trial for involvement in terrorism and should be in accordance with human rights obligations. Listing should not be seen as an alternative to trial and criminal punishment, but as an interim step. If a listed person has not been sent for trial at national level within a reasonable period of time, he or she should be delisted. The CTC’s and CTED’s supervision of state obligations as regards terrorism should be seen as improving the existing inefficient treaty regimes, but also checking that states have not violated human rights norms in their implementing legislation. In this way the Security Council could play a crucial role in balancing the security imperative and human rights concerns given that ‘many of the world’s anti-terrorist laws suffer from the endemic malaise of imprecision’; the ‘dangers of bad draftmanship are obvious; one of the potential dangers is the criminalization of legitimate dissent’.109

These are some of the means by which the security imperative could be more firmly anchored within the requirements of the rule of law. There are constitutional problems as well as legitimacy concerns with the Security Council becoming a general legislator, and so its actions should be directed at being compatible and complementary to existing regimes rather than overriding or supplanting them. This would mean that it should pay greater regard to the soft law framework being produced by the General Assembly, as reflecting wider community concerns, as well as to international treaty and customary law on terrorism more generally.

Given that the Security Council has done so much in relation to international terrorism, and done it by virtue of its Chapter VII powers, it might be time to see if the rest of the Membership is willing to return to the issue of a comprehensive consolidated treaty, which would recognize the role of the Council, but would serve to restrict what seems at the moment to be an ever-expanding Council competence that increasingly impinges on criminal justice concerns. This should be possible given that in 2004 the Council effectively defined terrorism without any reference to self-determination. It is recommended that a return to consensus, but effective, treaty-making should be sought. It has been argued that ‘due to the impact of mass terrorism, the right to self-determination has been gradually thrust into the background. There is a stronger will today than hitherto to make it clear that terrorist acts are unjustifiable in any circumstances …’110

However, the window of opportunity that opened after 9/11, which might have brought consensus on certain issues of international law and terrorism, may have been closed already by the narrow choices made by major states to pursue the ‘war (p. 82) on terrorism’ by military means in preference to developing through the UN legitimate and effective collective security mechanisms, and enhancing systems of national and international criminal justice. Only time will tell whether there will be further opportunities to achieve clear consensus, based on respect for the rule of law, within UN law-making on terrorism and counter-terrorism.

Footnotes:

See ND White, ‘Terrorism, Security and International Law’ in A Hehir, N Kuhrt, and A Mumford (eds), International Law, Security and Ethics: Policy Challenges in the Post-9/11 World (Routledge, London 2011) 9.

A Roberts, ‘Countering Terrorism: A Historical Perspective’ in A Bianchi and A Keller (eds), Countering Terrorism: A Historical Perspective (Hart, Oxford 2008) 5.

Art 24(2) UN Charter 1945.

Arts 10, 11(1) and 14 UN Charter. See ND White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (MUP, Manchester 1997) 161–78; B van Kinkel, The Practice of the United Nations in Combating Terrorism from 1946 to 2008 (Intersentia, Antwerp 2010) 89–126.

Art 92 UN Charter. On the limited role of the Court as an organ of review see R Watson, ‘Constitutionalism, Judicial Review and the World Court’ (1993) 34 Harvard JIL 1.

Conditions of Admission of a State to the United Nations (Article 4 of the Charter) [1948] ICJ Rep 64.

J Waldron, ‘Is the Rule of Law an Essentially Contested Concept?’ (2002) 21 Law and Philosophy 137, 159. For a very useful discussion of the rule of law see JM Farrall, United Nations Sanctions and the Rule of Law (CUP, Cambridge 2007) 24–32.

Plato, The Laws (tr TJ Saunders, Penguin, London 1970) 174.

R Nozick, Anarchy, State and Utopia (Blackwell, Oxford 1974) 15–17.

10  See Dworkin’s argument that liberal values are not inherently contradictory: R Dworkin, Justice for Hedgehogs (Harvard University Press, Cambridge, MA 2011).

11  The main non-UN sponsored treaties in force are: Convention on Offences and Certain Other Acts Committed on Board Aircraft (adopted 14 September 1963, entered into force 4 December 1969) (Tokyo Convention); Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971) (Hague Convention); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January 1973) (Montreal Convention); Convention on the Physical Protection of Nuclear Material (adopted 26 October 1979, entered into force 8 February 1987) (Vienna Convention); Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (adopted 24 February 1988, entered into force 6 August 1989) (Montreal Protocol); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (adopted 10 March 1988, entered into force 1 March 1992) (Rome Convention). The main UN sponsored treaties are: the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 December 1973, entered into force 20 February 1977); International Convention Against the Taking of Hostages (adopted 17 December 1979, came into force 3 June 1983); International Convention for the Suppression of Terrorist Bombing (adopted 15 December 1997, entered into force 23 May 2001); International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002); International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007).

12  Statute of the International Court of Justice 1945 art 38(1)(a).

13  See, for example, UNSC Res 573 (4 October 1985) UN Doc S/RES/573 condemning Israel’s airstrikes on the PLO’s headquarters in Tunis.

14  UNGA Res 41/38 (20 November 1986) UN Doc A/RES/41/38.

15  Arts 2(4), 42, and 51 UN Charter.

16  For academic support see WM Reisman, ‘In Defense of World Public Order’ (2001) 95 AJIL 833, 833. But see also ME O’Connell, ‘The Legal Case against the War on Terror’ (2004) 36 Case Western JIL 349, 351.

17  ‘Osama Bin Laden’s killing was ‘lawful’, says US’, 〈http://www.bbc.co.uk/news/world-middle-east-13287742〉 accessed 5 May 2011. See too Epilogue to D Kretzmer, ‘Use of Legal Force against Suspected Terrorists’, Chapter 24 of this volume.

18  TJ Farer, ‘Beyond the Charter Frame: Unilateralism or Condominium’ (2002) 96 AJIL 539.

19  Y Dinstein, War, Aggression and Self-Defence (4th edn CUP, Cambridge 2005) 44–8.

20  Dinstein (n 19) 230–1.

21  C Gray, International Law and the Use of Force (3rd edn OUP, Oxford 2008) 238.

22  See generally Y Dinstein, The Conduct of Hostilities under the International Law of Armed Conflict (CUP, Cambridge 2004).

23  See Geneva Convention (III) Relative to the Treatment of Prisoners of War 1949 (adopted 12 August 1949, entered into force 21 October 1950) art 5; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I) art 51. For a detailed analysis of classification of detainee issues, see D Turns, ‘Classification, Administration, and Treatment of Battlefield Detainees’, Chapter 17 of this volume.

24  Art 75 AP I; Common art 3 to all Geneva Conventions of 1949 (adopted 12 August 1949, entered into force 21 October 1950). See further R Pregent, ‘Torture, Interrogation, Counter-Terrorism, and the Rule of Law’, Chapter 20 of this volume.

25  On terrorist trials see generally D Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’ (OUP, Oxford 2008) 128–62; C Kannady, P Masciola, and M Paradis, ‘The “Push-Pull” of the Law of War: the Rule of Law and Military Commissions’, Chapter 25 of this volume.

26  See further C Downes, ‘Targeted Killings in an Age of Terror: The Legality of the Yemen Strike’ (2004) 9 JCSL 277.

27  See decision of the Israeli Supreme Court, Public Committee against Torture in Israel and Palestinian Society for the Protection of the Environment v Israel and Others, HCJ 769/02 (14 December 2006); A Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killing’ (2007) 5 JICJ 339.

28  For a seminal discussion see D Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 EJIL 171; and Kretzmer (n 17).

29  See White (n 4) 173–8.

30  UNGA Res 64/118 (15 January 2010) UN Doc A/RES/64/118; UNGA Res 65/34 (10 January 2011) UN Doc A/RES/65/34.

31  Farer (n 18) 364.

32  UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60 para 2 (emphasis added).

33  UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368.

34  ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts 2001’, annexed to UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83 as corrected by UN Doc A/56/49(Vol. I)/Corr. 4 (2001) art 8 (ILC Articles).

35  See Case of Velasquez Rodriguez (Preliminary Objections) IACtHR Series C No 4 (29 July 1988) para 172 concerning the responsibility of a state for failing to tackle the problem of disappearances.

36  UNGA, ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN’ UNGA Res 2625 (24 October 1970).

37  Arts 49–54 ILC Articles.

38  For example, see art 51(2) AP I which prohibits ‘acts of violence, the primary purpose of which is to spread terror among the civilian population’.

39  See International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) art 4.

40  ‘International Military Tribunal (Nuremberg), Judgment and Sentence’ (1947) 41 AJIL 172.

41  See art 40 ILC Articles (n 34).

42  But see art 54 ILC Articles (n 34).

43  UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1.

44  Art 1(c) Montreal Convention 1970.

45  B Saul, Defining Terrorism in International Law (OUP, Oxford 2006) 134–5.

46  Starting with UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267.

47  Starting with UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373.

48  UNSC Res 748 (31 March 1992) UN Doc S/RES/748.

49  Art 25 UN Charter.

50  Art 103 UN Charter. In a judgment on provisional measures, the International Court of Justice accepted that the combined effect of arts 25 and 103 UN Charter meant that the obligations imposed on states by UNSC Res 748 (31 March 1992) UN Doc S/RES/748 prevailed over obligations in the Montreal Convention 1970: Lockerbie Cases [1992] ICJ Rep 126.

51  Convention on the Suppression of Unlawful Acts Related to International Civil Aviation (adopted 10 September 2010, not yet in force) arts 1(1)(f) and 8(1)(e).

52  F Megret, ‘Justice in Times of Violence’ (2003) 14 EJIL 327, 327.

53  See, for example, UNSC Res 579 (18 December 1985) UN Doc S/RES/579; UNSC Res 638 (31 July 1989) UN Doc S/RES/638. For a comprehensive overview of the Security Council’s approach to terrorism issues pre- and post-Cold War, see B Saul, ‘Definition of “Terrorism” in the UN Security Council: 1985–2004’ (2005) 4 Chinese JIL 141.

54  UNSC Res 1438 (14 October 2002) UN Doc S/RES 1438 (Bali); UNSC Res 1530 (11 March 2004) UN Doc S/RES/1530 (Madrid); UNSC Res 1611 (7 July 2005) UN Doc S/RES/1611 (London).

55  UNSC Res 748 (31 March 1992) UN Doc S/RES/748.

56  UNSC Res 1044 (31 January 1996) UN Doc S/RES/1044.

57  UNSC 1636 (31 October 2005) UN Doc S/RES/1636.

58  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267. See also UNSC Res 1333 (19 December 2000) UN Doc S/RES 1333; UNSC Res 1390 (16 January 2002) UN Doc S/RRES/1390; UNSC Res 1735 (22 December 2006) UN Doc S/RES/1735.

59  UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566. See also UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540.

60  Letter dated 30 December 2010 from the Chairman of the Security Council Working Group established pursuant to resolution 1566 (2004) addressed to the President of the Security Council (31 December 2010) UN Doc S/2010/683.

61  UNSC Res 1456 (20 January 2003) UN Doc S/RES/1456 para 6.

62  Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council of the European Union [2008] ECR I-6351. See also the decision of the UN Human Rights Committee in Sayadi and Vinck v Belgium (2009) 16 IHRR 16; A Rosas, ‘Counter-Terrorism and the Rule of Law: Issues of Judicial Control’, Chapter 4 of this volume.

63  R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332. See further NS Rodley, ‘Detention as a Response to Terrorism’, Chapter 18 of this volume.

64  Al-Jedda (n 63) paras 2 and 27 (Lord Bingham).

65  Al-Jedda (n 63) para 39 (Lord Bingham).

66  Al-Jedda (n 63) para 136 (Lord Carswell).

67  Al-Jedda (n 63) para 130 (Lord Carswell).

68  UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566 para 3.

69  Saul (n 45) 46.

70  CA Ward, ‘Building Capacity to Combat International Terrorism: The Role of the United Nations Security Council’ (2003) 8 JCSL 289.

71  UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373; UNSC Res 1624 (14 September 2005) UN Doc S/RES/1624.

72  M Smith, CTED Executive Director, ‘Informal Briefing of Member States—16 December 2009’ paras 7, 8, and 20 〈http://www.un.org/en/sc/ctc/docs/statements/2009_12_16_cted_brief.pdf〉 accessed 21 April 2011.

73  Letter dated 3 December 2009 from the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council (3 December 2009) UN Doc S/2009/620. See also UNSC 1963 (23 December 2010) UN Doc S/RES/1963.

74  M Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 Leiden JIL 593. But see S Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175.

75  LL Fuller, The Morality of Law (Yale University Press, New Haven, CT 1969) 39.

76  TM Franck, The Power of Legitimacy Among Nations (OUP, Oxford 1990) 138.

77  Arts 42 and 51 UN Charter.

78  The authorization to use force against Libya in order to protect civilians from attacks by government forces in UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, was not characterized as action to combat state terrorism but to prevent the commission of further crimes against humanity.

79  UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368.

80  EPJ Myjer and ND White, ‘The Twin Towers: an Unlimited Right to Self-Defence’ (2002) 7 JCSL 5.

81  UNSC Res 1701 (11 August 2006) UN Doc S/RES/1701.

82  UNSC Res 1860 (8 January 2009) UN Doc S/RES/1860.

83  UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904. See further K Prost, ‘Fair Process and the Security Council: A Case for the Office of the Ombudsperson’, Chapter 16 of this volume.

84  But see the International Court of Justice’s narrower view in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136 paras 138–41.

85  Even judicial precedents are notoriously hard to delineate—see KN Llewellyn, The Common Law Tradition (Little Brown, Boston 1960) 75–92.

86  ME O’Connell, ‘Evidence of Terror’ (2002) 7 JCSL 19.

87  Prime Minister Tony Blair, for example, declared: ‘We will see this struggle through to the end and to the victory that would mark the victory not of revenge but of justice over the evil of terrorism’, Hansard HC vol 372 col 814 (8 October 2001).

88  Myjer and White (n 80) 5–16.

89  C Henderson, ‘The Bush Doctrine: From Theory to Practice’ (2004) 9 JCSL 3.

90  International Bar Association, International Terrorism: Legal Challenges and Responses (Transnational Publishers, New York 2003) 25 (IBA Task Force 2003); K Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence Against Non-State Terrorist Actors’ (2007) 56 ICLQ 141, 146–7; CJ Tams, ‘The Use of Force Against Terrorists’ (2009) 20 ICLQ 359, 392. More recently, see E Stubbins Bates, IBA Task Force on Terrorism, R Goldstone, E Cotran, G de Vries, JA Hall, JE Mendez, and J Rehman, Terrorism and International Law: Accountability, Remedies, and Reform: A Report of the IBA Task Force on Terrorism (OUP, New York 2011).

91  UNSC Res 1386 (20 December 2001) UN Doc S/RES/1386; UNSC Res 1510 (13 October 2003) UN Doc S/RES/1510.

92  IBA Task Force 2003 (n 90) 24.

93  UNGA Res 2131 (21 December 1965) UN Doc A/RES/2131; UNGA Res 2625 (24 October 1970) UN Doc A/RES/2625; UNGA Res 3314 (14 December 1974) UN Doc A/RES/3314; UNGA Res 42/22 (18 November 1987) UN Doc A/RES/42/22.

94  See the UK Attorney General’s opinion in C Warbrick and D McGoldrick, ‘The Use of Force Against Iraq’ (2003) 52 ICLQ 811.

95  See ND White, ‘The Will and Authority of the Security Council After Iraq’ (2004) 17 Leiden JIL 645, 660 citing President Bush’s statement that ‘we don’t really need the United Nations’ approval to act … when it comes to our security’.

96  UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60.

97  IBA Task Force 2003 (n 90) 129.

98  IBA Task Force 2003 (n 90) 136.

99  PJ van Krieken, Terrorism and the International Legal Order (TMC Asser Press, The Hague 2002) 65.

100  Van Krieken (n 99) 143.

101  See UNSC, ‘UN Counter-Terrorism Committee’ 〈http://www.un.org/en/sc/ctc/practices.html〉 accessed 18 April 2011.

102  UNGA Res 60/288 (9 September 2006) UN Doc A/RES/60/288.

103  UNGA Res 61/40 (18 December 2006) UN Doc A/RES/61/40 para 9.

104  UNGA Res 64/168 (22 January 2010) UN Doc A/RES/64/168; UNGA Res 65/221 (21 December 2010) UN Doc A/RES/65/221.

105  See N Quenivet, ‘You are the Weakest Link and We Will Help You! The Comprehensive Strategy of the United Nations to Fight Terrorism’ (2006) 11 JCSL 317, 389. See also Report of the UN Secretary-General’s High-Level Panel on Threats, Challenges, and Change, ‘A More Secure World: Our Shared Responsibility (2004) UN Doc A/59/565 para 148(a).

106  Quenivet (n 105) 390–1.

107  See Part 3 of this volume.

108  See further R Rastan and O Bekou, ‘Terrorism and Counter-Terrorist Responses: The Role of International Criminal Jurisdictions’, Chapter 32 of this volume.

109  IBA Task Force 2003 (n 90) 58.

110  S von Schorlemer ‘Human Rights: Substantive and Institutional Implications of the War Against Terrorism’ (2003) 14 EJIL 265, 271.