December 5, 2021


Let'S Talk Law

The legal black gap in United Nations counterterrorism – Environment

By Ben Saul

It is amazing that two a long time of intensive international counterterrorism law and cooperation have proceeded from a normative black hole: the absence of a frequent definition of terrorism. Protection Council Resolution 1373 and successive resolutions have deliberately omitted any definition, even with necessitating states to acquire significantly-reaching legislative and government action.

On the a single hand, the Council’s technique was tactically brilliant. Because new counterterrorism steps had been perceived to be urgent after 9/11, there was no time to get bogged down in the intractable question of definition, which had eluded worldwide settlement for a century. The confined club of 15 Council members would have been unlikely to agree. Even if they had, their definition would have been unlikely to reflect or attract an worldwide consensus, triggering really serious compliance issues in national implementation.

Inspite of “making” new regulation, as a political body the Council appeared contented with its political intuition, expressed by the then United Kingdom’s Ambassador, Jeremy Greenstock, that “What looks, smells and kills like terrorism is terrorism.” Legal definition was in its place devolved to states in countrywide implementation. Whilst the Council intrusively demanded in depth domestic legislation, person states had been usually information to keep their sovereign discretion to detect and legislate for them selves the that means of terrorism.

Substantially important and principled counterterrorism regulation and cooperation has transpired based on the Council’s suite of resolutions, in spite of the absence of a definition. The failure to define terrorism carries on, having said that, to seriously impede the success of counterterrorism, its regularity with human legal rights law and worldwide humanitarian legislation, and the legitimacy and legality of the Council’s exercising of its international stability powers underneath the United Nations Charter.

Impaired Success

First of all, from a useful standpoint, the inevitable divergence in between nationwide definitions impairs inter-state cooperation to “bring to justice” terrorists, as the Council calls for. The “dual criminality” necessity of numerous extradition and mutual help legislation and treaties may perhaps preclude cooperation between two states if their definitions of terrorism do not protect typical ground. Impunity may perhaps appropriately final result wherever a state is not able to extradite a human being who may perhaps have dedicated a terrorist offence overseas less than one more state’s legislation, but not underneath its have.

The similar state may well also be unable to prosecute the international offender in its individual legal technique. In the absence of an agreed international definition, a single point out is not expected to criminalize the identical “terrorist” conduct as an additional state by asserting extraterritorial quasi-“universal” jurisdiction over it. In its place, various domestic counterterrorism legislation sail by like ships passing in the evening. The authorized variations are also fertile ground for political tensions exactly where a person point out arrives underneath tension from yet another, or its allies, to help the latter to enforce its terrorism laws.

Further than the felony legislation sphere, divergent countrywide definitions similarly impair cooperation across the spectrum of other measures expected by Council resolutions. These include things like the responsibility on states to them selves chorus from supporting terrorism and to counter terrorist funding, prevent terrorism and support for it, protect against the motion of terrorists, tackle abuse of refugee standing, and avert and suppress the vacation of “foreign terrorist fighters.” The same may be explained of the “soft” counterterrorism agenda expressed as a result of the UN Normal Assembly’s Global Counter-terrorism Approach and the specialized function of bodies this sort of as the UN Business of Counter-Terrorism, UN Counter-Terrorism Centre, UN Office of Medicines and Crime, and through the 42 entities below the UN World-wide Counter-Terrorism Coordination Compact.

Next, even though states may perhaps determine terrorism for them selves, it is complicated for them to know no matter if there is any minimal or core “soft” thought of terrorism that they are nevertheless envisioned to enact. This matters for a bundle of explanations. States are issue to continuing international checking by the Counter-Terrorism Committee Executive Directorate (CTED) and the Fiscal Action Activity Power (FATF) whose listing of higher-threat jurisdictions can carry financial fees. Casual groups, this kind of as the Global Counter-Terrorism Forum, also make “soft” standards predicated on “terrorism,” which in convert influence Protection Council and national follow. Other states could count on cooperation in regard of distinct conduct. Technological aid may possibly also be premised on ‘soft’ definitions of terrorism.

Stung by human legal rights criticisms, the Council belatedly offered a non-binding definition of terrorism in Resolution 1566. That definition has been welcomed on human rights grounds since it is so narrow. It cumulatively involves: (a) an intention to cause dying or severe bodily damage or hostage using, (b) an offence underneath one of the 19 current “counterterrorism” conventions, and (c) a goal (or “specific intent”) to provoke a point out of terror in the public or a team of individuals, or to intimidate a population, or to compel a government or international organization to do or to abstain from carrying out any act.

The rewards of that definition consist of that it links terrorism to the existing conference offenses, which are greatly agreed upon, thoroughly negotiated as a result of open and participatory treaty procedures, and fulfill the principle of legality (like precision and foreseeability) in the definition of crimes. The addition of the private violence and unique intent features in Resolution 1566 also cuts down the overbreadth of some conference offenses, which are not often “terroristic” but pursue broader regulatory aims in fields such as aviation, maritime, or nuclear security. Numerous of the conventions also capture not only “public” (that is, political, religious, or ideological) violence but also “private” violence, which may well be far more like normal crime than terrorism.

The obvious defect in this definition is that it would exclude a lot of functions normally regarded as “terrorism.” In portion this is since the resolution handles only hurt to people today, not other targets of terrorism this kind of as residence, sources, infrastructure or utilities, communications, fiscal methods, the surroundings, or endangerment of community health and fitness and basic safety in typical.

Far more pressingly, it is far too slim mainly because it confines terrorism to the scope of the current convention offenses. Even though these protect some typical terrorist procedures (especially hostage having and bombings), they had been developed reactively and do not include all varieties of terrorism—or even the most widespread, these kinds of as assaults by tiny arms. A lot of are also minimal to transnational not domestic terrorism, yet the Council also requires motion on the latter.

These constraints are exactly why quite a few states have enacted a lot more common definitions of terrorism, which is also the intention of the Draft UN Convention for the Prevention and Suppression of Intercontinental Terrorism, below negotiation given that 2000 by way of the Common Assembly. The draft convention, like the normal part of the definition in the Terrorist Financing Conference 1999, inclusively encompasses terrorism “by any usually means.”

In any event, Resolution 1566 has not appreciably influenced nationwide observe, and there is very little evidence that the Council or CTED has sought to affect states to restrain or amend their definitions according to it. CTED’s Technical Assistance (2020) to states encourages enactment of the counterterrorism conference offenses, and acknowledges basically that other definitions of terrorism should comply with human legal rights regulation. On the other hand, the opaque mother nature of CTED assessments—most of the time, they are not publicly released—makes it tough to know what precisely CTED expects of national definitions in apply.

Consistency with Human Rights and Humanitarian Regulation

The absence of definition has notoriously led to far too quite a few national definitions violating global human rights law. Unique concerns contain infringements of the principle of legality, whereby definitions are not adequately very clear or specific to enable folks to foreseeably know the scope of their liability as effectively discrimination and violations of political freedoms. These issues are most acute in relation to the numerous imprecise “preparatory” offenses which the Council needs states to enact, typically compounding the vagueness in the predicate definition of “terrorism” itself. Abnormal overseas legislation may possibly be but an additional impediment to worldwide cooperation exactly where other states’ legislation preclude complicity in rights violations.

Admittedly, Council resolutions have tokenistically (and yet again belatedly) urged states to comply with human legal rights when applying counterterrorism steps. It is also true that the load is on states themselves to comply with human rights, including in defining terrorism. Even so, the Council is negligent in enabling states rather open slather on definition, when prevalent abuse of terrorism legal guidelines is traditionally apparent and presently notorious, and when so many of its other actions are brought on by the definition. Selling and encouraging regard for human legal rights is a core UN reason.

Council direction has also been sorely missing on the effect of definitions on worldwide humanitarian regulation (IHL). A substantial element of the controversy about defining terrorism is exactly how to differentiate it from hostilities in armed conflict ruled by IHL, together with beat by non-point out armed groups—even if ostensibly “terrorist” below counterterrorism law. Exclusions of several types are identified in numerous counterterrorism conventions and regional legislation, as in the European Union. For quite a few states, “war” is just not the exact same as “terrorism,” even if some—but not all—tactics in war could justifiably be dealt with by both equally IHL and counterterrorism.

In distinction, people national definitions of terrorism which criminalize all war combating by armed groups—even if they regard IHL—undermine incentives for such groups to comply with IHL and impair potential customers for peace settlements and write-up-conflict reconciliation. When the Council has abstractly urged states to comply with IHL, it has not confronted in any meaningful way how to adequately tackle the interaction of the two authorized regimes.

Worse, sure terrorism offenses straight collide with the protections for healthcare and humanitarian personnel and routines beneath IHL, jeopardizing guidance to civilians, the wounded, and detainees. While the Council has encouraged (but not essential) states to “take into account” this kind of humanitarian imperatives, it has not unequivocally subordinated abnormal counterterrorism regulations (such as in depth “material support” offenses) to IHL.

Summary: Legitimacy and the Council’s Stability Powers

The normative black hole at the center of the Council’s normative counterterrorism universe has not been an insurmountable impediment to pragmatic lawmaking and cooperation due to the fact 2001. It has however impeded maximally effective and principled counterterrorism cooperation, led to frequent and reasonably unconstrained human legal rights violations, and undermined policy and legal pursuits beneath IHL in armed conflict.

Due to the fact 2001 there have been debates about the Charter-centered constitutionality of the Council’s quasi-legislative reaction to the generalized danger of any upcoming terrorism, in distinction to its historical “policing” (not legislative) part in reaction to unique (not summary) threats. In principle, it is controversial that responding to terrorism as a normal classification of threat, and demanding states to legislate prospectively in response, is a defensible work out of Constitution security powers, recognized dynamically and in light of wide point out acceptance. This is accurate even if other bodies or processes are without doubt better positioned to make additional reputable law than the much less clear, selective club that is the Council—such as participatory, clear, negotiated, consent-based multilateral treaty-generating, through the universal Basic Assembly.

There are even so other fundamentally troubling queries about the extent of this radical legal trajectory. How can the Council—credibly, and with a straight face—designate all “terrorism” as a danger to worldwide peace and protection, and have to have authorized measures to be taken from it, without the need of describing what it is? How is all domestic (as opposed to transnational) terrorism a risk to global protection, when its results by definition are contained totally in a one point out? It may perhaps be acceptable to determine a general classification of threat, but it can rarely be a legitimate training of Constitution power if that menace includes a black gap. The Council could be an expert in politics and protection, but legislation requires certainty and precision—or it is not law at all, just politics and arbitrariness disguised as legislation.

Ben Saul is Challis Chair of International Regulation at the College of Sydney and Associate Fellow of Chatham Property in London. He tweets at @profbensaul.

This post is component of a collection on the part of the UN program in protecting against violent extremism and countering terrorism (PVE/CT), finished in collaboration with the Brian Urquhart Heart for Peace Operations.

Initially Released in the World-wide Observatory