Issues in Public International Law
Topic 6
Global Terrorism and Counterterrorism
Bullet Points
• The definition of ‘terrorism’
• The UN convention against terrorism
• Terrorism after 9/11
o The UN Security Council Resolution 1373/2001
Terrorism-financing
Terrorism prevention
International cooperation in counterterrorism
• Counterterrorism and human rights
o Human rights limitations
o Human rights derogations
• Counterterrorism and self-defence after 9/11
o Terrorism as an ‘armed attack’?
o The attribution of terrorist acts
• Counterterrorism and private security companies
Overview
This topic focuses on: (1) The international regulation of terrorism and counterterrorism; (2) Counterterrorism and human rights; (3) Counterterrorism and resort to force; and (4) Private security companies and counterterrorism.
1. Terrorist acts may assume different forms, ranging from the taking of foreign hostages in Lebanon (1982-1991) to the first bombing of the World Trade Centre (1993).
The international regulation of terrorism has traditionally been fragmented. In fact, there are currently 13 UN conventions addressing different terrorist acts, for instance the 1979 International Convention against the Taking of Hostages and the 1997 International Convention for the Suppression of Terrorist Bombings. These conventions ‘require States to take specific measures to prevent the commission of terrorist acts and prohibit terrorist-related offences, including by obliging States parties to criminalize specific conduct, establish certain jurisdictional criteria (including the well-known principle of aut dedere aut judicare or “extradite or prosecute”), and provide a legal basis for cooperation on extradition and legal assistance. Most of these treaties relating to specific aspects of terrorism define specified acts as offences and require States to criminalize them’ (UNCHR, Human Rights, Terrorism and Counterterrorism, Fact Sheet No 32 (2008) 13). In particular, the 1999 Terrorist Financing Convention ‘obliges parties to take appropriate measures to identify, detect, freeze, or seize terrorist-related funds (Ilias Bantekas, ‘The International Law of Terrorist Financing’ (2003) 97-2 American Journal of International Law 315, 325).
The sectoral approach to terrorism raises the problem of establishing a uniform definition and thus a coherent regulatory approach to the problem. In general, terrorism can be regarded as violent conduct motivated by ideological or political aims which provokes death of civilians, serious bodily harm or damage to public/private property in order to generate a state of terror and influence governmental action (UNCHR (2008) 5-7: ‘Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims … In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them” … the Security Council, in its resolution 1566 (2004), referred to “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a Government or an international organization to do or to abstain from doing any act” … The General Assembly is currently working towards the adoption of a comprehensive convention against terrorism, which would complement the existing sectoral anti-terrorism conventions. Its draft article 2 contains a definition of terrorism which includes “unlawfully and intentionally” causing, attempting or threatening to cause: “(a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) damage to property, places, facilities, or systems … resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act”’).
The current framework for counterterrorism action has been heavily influenced by the 9/11 attacks, which struck New York City, Washington DC and the Pentagon in Virginia on September 11, 2001. In fact, following these attacks, the UN Security Council adopted Resolutions 1368/2001 and 1373/2001, which condemn international terrorism as a threat to international peace and security to be fought ‘by all means’. In particular, Resolution 1373/2001, which has unlimited application in time, imposes several counterterrorism obligations on states.
More specifically, Resolution 1373/2001 compels states to prevent and suppress the financing of terrorist acts. This is a crucial aspect of the fight against terrorism, since terrorist operations are very cost-effective – for instance, the cost of 9/11 attacks was estimated to be about US$500,000, whereas the US losses were estimated at US$135 billion (UN Security Council, Resolution 1373/2001, para 1: ‘[The Security Council] Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts … (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts’; Clive Williams, Terrorism Explained (2004) 92).
Furthermore, the Resolution obliges states to refrain from supporting and to prevent acts of terrorism, especially by criminalising participation in terrorist acts (UN Security Council, Resolution 1373/2001, para 2: ‘[The Security Council] Decides that all States shall: ‘(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts … (b) Take the necessary steps to prevent the commission of terrorist acts … (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws … (g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents’).
The Resolution also calls upon states to increase cooperation in counterterrorism action (UN Security Council, Resolution 1373/2001 para 3: ‘[The Security Council] Calls upon all States to: (a) Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks … (b) Exchange information in accordance with international and domestic law and cooperate on administrative and judicial matters to prevent the commission of terrorist acts … (c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts; (d) Become parties as soon as possible to the relevant international conventions and protocols relating to terrorism’).
Procedurally, Resolution 1373/2001 establishes a monitoring mechanism through a Committee of the Security Council, based on initial states’ reports within 90 days from the adoption of the resolution and subsequent periodical reports. Finally, the Security Council is empowered to ‘take all necessary steps in order to ensure the full implementation of the Resolution’ (UN Security Council, Resolution 1373/2001 para 8).
Resolution 1373/2001 is interesting because it is a sort of international legislation established by the UN Security Council, insofar as it addresses ‘All states’ (Michael Doyle, ‘A Global Constitution? The Struggle over the UN Charter’ (2010) 8: ‘The single largest movement toward supranationality today appears to be the global war against terrorism led by the Security Council. To some, this looks like global legislation, imposed on states … the resolutions address states in general’). However, a dualist approach to international relations can certainly limit the effectiveness of the SC Resolution, in the vein, for instance, of the Kadi and Al Barakat Foundation case, in which the ECJ, dealing with a Council of Europe ruling enforcing UN Security Council sanctions against a list of individuals with alleged ties to Osama Bin Laden, raised an issue of compatibility between the sanctions, which applied without adequate procedural remedies, and EU basic principles (Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, joined cases C-402/05 P and C-415/05 P, judgment of 3 September 2008).
It must also be noted that Resolution 1373/2001 put suddenly into practice a set of anti-terrorism obligations, which the previous conventions on terrorism could not effectively establish (Ilias Bantekas, ‘The International Law of Terrorist Financing’ (2003) 97-2 American Journal of International Law 315, 323-32: ‘By September 2001, the 1999 Terrorist Financing Convention had not received the required twenty-two ratifications, the FATF [Financial Action Task Force] had scantly addressed the issue of terrorist financing, and besides a handful of Western states, very few took domestic action in this area. Resolution 1373 changed all that overnight. It criminalized all activities falling within the ambit of terrorist financing; it obliged states to freeze all funds of financial assets of persons and entities that are directly or indirectly used to commit terrorist acts or that are owned and controlled by persons engaged in, or associated with, terrorism; it obliged states to prevent their nationals (including private financial institutions) from making such funds available … and it imposed substantive and procedural criminal law measures at the domestic level, including an obligation to cooperate in the acquisition of evidence from criminal proceedings. Interestingly, the resolution calls on states to become parties to the 1999 Terrorist Financing Convention. This provision may be perceived as ironic, since Resolution 1373 imposes more or less the same obligations as the 1999 Convention’).
2. In adopting counterterrorist measures, states must respect human rights (UNCHR (2008) 19-20: ‘Just as terrorism impacts on human rights and the functioning of society, so too can measures adopted by States to counter terrorism … in particular human rights law, refugee law and international humanitarian law … In his 2006 report “Uniting against terrorism: recommendations for a global counterterrorism strategy” (A/60/825), the United Nations Secretary-General described human rights as essential to the fulfilment of all aspects of a counterterrorism strategy and emphasised that effective counterterrorism measures and the protection of human rights were not conflicting goals, but complementary and mutually reinforcing ones’). In particular, after 9/11 it is necessary to avoid states taking advantage of the struggle against terrorism to intensify their action against political opponents, separatists and religious groups (Human Rights Watch, Opportunism in the Face of Tragedy: Repression in the Name of Anti-terrorism).
Limitations to and derogations from human rights obligations are possible, but only by respecting a number of conditions. Limitations to human rights in adopting counterterrorism measures are possible only when they are: (1) prescribed by law; (2) adopted pursuing a legitimate purpose; and (3) necessary and proportionate (UNCHR (2008) 23-26: ‘(a) Prescription by law … the enjoyment of rights and freedoms must be set out within, or authorized by, a prescription of law. To be “prescribed by law”: (a) the law must be adequately accessible so that individuals have an adequate indication of how the law limits their rights; and (b) the law must be formulated with sufficient precision so that individuals can regulate their conduct. Moreover, any criminal law proscription must also comply with the principle of non-retroactivity … (b) In the pursuance of a legitimate purpose … The permissible legitimate purposes for the interference vary depending on the rights subject to the possible limitations as well as on the human rights treaty in question. They are national security, public safety, public order, health, morals, and the human rights and freedoms of others … (c) Necessity and proportionality … any limitation on the free enjoyment of rights and freedoms must be necessary in the pursuit of a pressing objective, and its impact on rights and freedoms strictly proportional to the nature of that objective … [the limiting measure] must be necessary to achieve a particular counterterrorism objective’). For instance, limiting the right to expression for the purpose of prohibiting incitement to terrorism is legitimate if certain conditions are fulfilled. In fact, ‘the prohibition against incitement should take the form of a provision within legislation. As to legitimate purpose, proscribing incitement to terrorism is consistent with the protection of national security or public order … Prohibiting incitement to terrorism must therefore be limited to what is actually required to protect national security or public order. The provision, and the way in which it is applied, must also be proportional, ie, for each measure, one must determine whether, given the importance of the right or freedom, the impact of the measure on the enjoyment of that right or freedom is proportional to the importance of the objective being pursued’ (UNCHR (2008) 25-6).
Derogations from human rights are admitted in particular in ‘situations of public emergency’ under an ‘exceptional and actual or imminent danger which threatens the life of the nation’ (Article 4 of the ICCPR). Terrorist acts may constitute a ‘threat to the life of the nation’, but a case by case assessment is necessary (UNCHR (2008) 28: ‘Whether or not terrorist acts or threats establish such a state of emergency must therefore be assessed case by case’). Furthermore, human rights derogations may only have a temporary character and cannot be discriminatory (UNCHR (2008) 29: ‘Any derogation under article 4 (1) of the Covenant [ICCPR] may only be to the extent strictly required by the exigencies of the situation.” Key to this requirement is the temporary nature of any derogation … Article 4 (1) specifies that any derogation of rights in times of emergency may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’). Certain rights are considered non-derogable, even in time of emergency, and thus counterterrorism measures cannot derogate from them (UNCHR (2008) 28: ‘Derogation from certain human rights set out in international human rights treaties is prohibited, even in a state of emergency. Article 4 (2) of the International Covenant on Civil and Political Rights identifies as non-derogable the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude, freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties, the right to be recognized as a person before the law, and freedom of thought, conscience and religion. In its general comment N° 29, the Human Rights Committee has also emphasised that the Covenant’s provisions relating to procedural safeguards can never be made subject to measures that would circumvent the protection of these non-derogable rights’). Based on these premises, the authorisation of cruel interrogation methods as part of counterterrorism strategies, allegedly practiced, for instance, against al Qaeda and Taliban detainees in Guantanamo, must be considered illegal (but see Alan Dershowitz, Why Terrorism Works (2003)). In A v UK the European Court of Human Rights discussed the notion of ‘public emergency’ in light of global terrorist threats to the UK and held that that global terrorism can be an actual, imminent, temporary and established emergency (A and Others v UK, Appl No 3455/05 (19 February 2009) [175]-[181]). The Court held that the 9/11 attacks created in the UK an ‘emergency threatening the life of the nation’, but concluded that such an emergency was not sufficient to justify the adoption of the Anti-terrorism Acts 2001 (UK), which extended the power to arrest and detain foreign nationals. In fact, the Act was considered in breach of Articles 5 and 6 ECHR and discriminatory against foreigners (A and Others v UK (19 February 2009) [190]).
3. Another important issue raised by the response to 9/11 is the state’s faculty of resorting to force in response to a terrorist attack within the context of interstate relations. In fact, the US, together with a coalition of supporting states, resorted to force against Afghanistan based on an alleged right to self-defence, disregarding Chapter VII of the UN Charter, intervention by invitation and humanitarian intervention.
A first issue in this respect is equating a terrorist attack to an ‘armed attack’, which is a necessary requirement for resorting to force in self-defence. However, ‘by expanding its claim of self-defence to include the Taliban and securing the advance support of a large number of other States, the US effectively overcame any such limitation. The attacks on New York and Washington engaged individual criminal responsibility, but State-sponsored terrorism on this scale now also constitutes an “armed attack”’ (Michael Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 International and Comparative Law Quarterly 412).
A second problem is the fact that the 9/11 terrorist attacks were not perpetrated by states, but by private persons, outside the provision of self-defence under general international law (Article 21 of the ILC’s Project on State Responsibility) and the UN Charter (Article 51).
In this regard, it is important to remark that in Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory the ICJ assumed that the construction of a wall in the Palestinian territory to prevent terrorist attacks could not be considered an exercise of the right to self-defence, because attacks were not perpetrated by a state, but by private individuals (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Reports 133, 194, para 139: ‘Article 51 of the Charter thus recognises the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State … and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence’).
However, the US justified the intervention in Afghanistan based on the necessity of dismantling the Taliban regime, which was supposed to provide support to al Qaeda and was thus involved in the 9/11 attacks (Michael Byers (2002) 407-8: ‘Today, the question arises as to whether the right of self-defence extends to military responses to terrorist acts, particularly since most such responses will violate the territorial integrity of a State that is not itself directly responsible … By giving refuge to Bin Laden and Al-Qaeda and refusing to hand him over, the Taliban were alleged to have directly facilitated and endorsed his acts. Moreover, their continued presence as the de facto government of Afghanistan was viewed as a threat, in and of itself, of even more terrorism … Although it would normally still be contentious, this is much less of a stretch from pre-existing international law than a claimed right to attack terrorists who simply happened to be within the territory of another State. Subsequent statements by the Taliban, apparently endorsing the terrorist acts, may further have engaged their legal responsibility even if, under pre-existing customary international law, this might not have made them responsible for an “armed attack”. And for these reasons, the claim to be acting in self-defence against the State of Afghanistan—and the modification of customary international law inherent within that claim—had a much better chance of securing the expressed or tacit support of a large number of other States’). Thus, self-defence would be justified from the perspective of state-sponsored terrorism.
The self-defence approach might also be temporally extended in order to encompass pre-emptive action against states according to the discipline of ‘anticipatory self-defence’ (Michael Byers (2002) 410: ‘The US may now be employing similar legal strategies in an effort to develop or extend a right of anticipatory self-defence against terrorist acts … Until 11 September, any right to pre-emptive action was widely contested—and thus tightly constrained … In his letter of 7 October 2001, Ambassador Negroponte did more than invoke the right of self-defence with regard to Afghanistan. He also wrote: ‘We may find that our self-defence requires further actions with respect to other organisations and other states.’ The US, in extending its claim beyond Al-Qaeda, is clearly contemplating widespread military action of a pre-emptive character that it would justify as anticipatory self-defence. Negroponte’s letter could be seen as a step towards securing advanced support for an extension of the right of self-defence to encompass this previously contested sphere. Indeed, the letter attracted little in the way of protests from other States—an omission that might, if continued in the face of action justified as anticipatory self-defence—be regarded as evidence of acquiescence in yet another change to customary international law’).
At the procedural level, Article 51 of the UN Charter requires that: ‘Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council’. In the case of the use of force against Afghanistan it may be argued that UN Security Council Resolutions 1368/2001 and 1373/2001 implicitly authorised the use of force in self-defence against Afghanistan. In fact, Resolution 1368/2001 ‘unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001’. Resolution 1373/2001 affirms ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’ and compels states to ‘take the necessary steps to prevent the commission of terrorist acts’. However, in the case of pre-emptive resort to force in self-defence against possible terrorist attacks the question arises as to whether a preliminary authorisation by the Security Council is necessary (Michael Byers (2002) 413: ‘who decides that there is sufficient evidence of State complicity to justify the use of military force? Is the Article 51 requirement that self-defence measures be reported to the Security Council sufficient protection against incautious or opportunistic behaviour—especially given that five of the States most able to engage in such measures have the capacity to veto any resolution directed against them? These issues become only more difficult in the context of an extension of the right of self-defence to include pre-emptive action’).
As regards human rights protection, within the context of the ‘war on terror’ al Qaeda and Taliban detainees captured in Afghanistan and transported to a military base in Guantanamo Bay were controversially qualified by the US government as ‘unlawful combatants’ and thus were denied the status of ‘prisoners of war’ and a fair trial (see David Frakt, ‘Closing Argument at Guantanamo: the Torture of Mohammed Jawad’ (2009) 22 Harvard Human Rights Journal 1).
4. Finally, it is clear that terrorism has mainly been approached from the perspective of traditional international law, through inter-state conventions, UN Security Council Resolutions and the doctrine of self-defence. However, private security companies are becoming involved with increased frequency in anti-terrorist action; in fact, terrorism and asymmetric warfare call for decentralised reaction rather than centralized state action, or, at least, public-private partnerships (Caroline Holmqvist, Private Security Companies – The Case for Regulation (2005) 36: ‘the new threat perception has opened up and highlighted numerous roles for the private sector and for public-private interaction – for example, in the control of terrorist financing and movement, technology leakage and the protection of critical infrastructure’).
Private security companies may be particularly useful in pre-emptive intelligence operations against terrorism, including cyber espionage. For instance, it seems that members of al-Qaeda use the Internet as a means of communication (Jack Kelley, ‘Terror Groups Hide behind Web Encryption’, USA Today, February 6, 2001, 7A; Caroline Holmqvist (2006) 37: ‘Frequent links between PSCs and companies within the information technology (IT) and electronic systems industries make private security actors seem well placed for the technology-intensive aspects of intelligence gathering. Indeed, many of the important actors within the ‘intelligence branch’ of the private security sector have originated as IT or telecommunications companies, only to then diversify their portfolios to cover security-related services … The private sector has also been awarded contracts in the realm of cyber terrorism, setting up business to monitor suspicious Internet sites – what US Deputy Defence Secretary Paul Wolfowitz calls “cyber sanctuaries”. An example of this is the Search for International Terrorist Entities Institute, operating out of (undisclosed) locations in the USA and Israel’).
However, anti-terrorism strategy and action is a particular domain and the fact that non-democratically elected organs responding to the logic of profit share highly sensitive information is quite problematic. Thus, a regulatory framework for the outsourcing of counterterrorism services and public-private collaborations is necessary in the field (Caroline Holmqvist (2006) 40-41: ‘Fundamentally, the use of PSCs in the intelligence sector means the introduction of a new ‘protagonist’ in security politics. All aspects of intelligence gathering require interpretation, and when actors whose main responsibility is not to voters and democratic institutions but to shareholders perform this, there is reason for concern … A new, clear structure for public-private interaction in the field would be needed to draw out this potential in a way that avoids or offsets the problems mentioned above … if intelligence is not properly integrated or falls into the wrong hands, the effects will be hugely detrimental to security. The case for drawing PSCs into a clearer and more robust structure of security governance demands that their use is conducted in an open, transparent way and that proper accountability is ensured’).
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