UNITED NATIONS ACTION TO COUNTER TERRORISM

High Level Panel

Terrorism

A. The threat we face

145. Terrorism attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict. Terrorism flourishes in environments of despair, humiliation, poverty, political oppression, extremism and human rights abuse; it also flourishes in contexts of regional conflict and foreign occupation; and it profits from weak State capacity to maintain law and order.

146. Two new dynamics give the terrorist threat greater urgency. Al-Qaida is the first instance — not likely to be the last — of an armed non-State network with global reach and sophisticated capacity. Attacks against more than 10 Member States on four continents in the past five years have demonstrated that Al-Qaida and associated entities pose a universal threat to the membership of the United Nations and the United Nations itself. In public statements, Al-Qaida has singled out the United Nations as a major obstacle to its goals and defined it as one of its enemies. Second, the threat that terrorists — of whatever type, with whatever motivation — will seek to cause mass casualties creates unprecedented dangers. Our recommendations provided above on controlling the supply of nuc lear, radiological, chemical and biological materials and building robust global public health systems are central to a strategy to prevent this threat.

B. Meeting the challenge of prevention

1. A comprehensive strategy

147. Throughout the Panel’s regional consultations, it heard concerns from Governments and civil society organizations that the current “war on terrorism” has in some instances corroded the very values that terrorists target: human rights and the rule of law. Most of those who expres sed such concerns did not question the seriousness of the terrorist threat and acknowledged that the right to life is the most fundamental of human rights. They did, however, express fears that approaches to terror focusing wholly on military, police and intelligence measures risk undermining efforts to promote good governance and human rights, alienate large parts of the world’s population and thereby weaken the potential for collective action against terrorism. The crucial need, in relation to the States in the regions from which terrorists originate, is to address not only their capacity but their will to fight terror. To develop that will — with States drawing support rather than opposition from their own publics — requires a broader-based approach.

148. A thread that runs through all such concerns is the imperative to develop a global strategy of fighting terrorism that addresses root causes and strengthens responsible States and the rule of law and fundamental human rights. What is required is a comprehensive strategy that incorporates but is broader than coercive measures. The United Nations, with the Secretary-General taking a leading role, should promote such a comprehensive strategy, which includes:

  1. Dissuasion, working to reverse the causes or facilitators of terrorism, including through promoting social and political rights, the rule of law and democratic reform; working to end occupations and address major political grievances; combating organized crime; reducing poverty and unemployment; and stopping State collapse. All of the strategies discussed above for preventing other threats have secondary benefits in working to remove some of the causes or facilitators of terrorism;
  2. Efforts to counter extremism and intolerance, including through education and fostering public debate. One recent innovation by UNDP, the Arab Human Development Report , has helped catalyse a wide ranging debate within the Middle East on the need for gender empowerment, political freedom, rule of law and civil liberties;
  3. Development of better instruments for global counter-terrorism cooperation, all within a legal framework that is respectful of civil liberties and human rights, including in the areas of law enforcement; intelligence-sharing, where possible; denial and interdiction, when required; and financial controls
  4. Building State capacity to prevent terrorist recruitment and operations;
  5. Control of dangerous materials and public health defence.
2. Better counter-terrorism instruments

149. Several United Nations anti-terrorist conventions have laid important normative foundations. However, far too many States remain outside the conventions and not all countries ratifying the conventions proceed to adopt internal enforcement measures. Also, attempts to address the problem of terrorist financing have been inadequate. While in the three months after 11 September 2001 $112 million in alleged terrorist funds were frozen, only $24 million were frozen in the two years that followed. Seized funds represent only a small fraction of total funds available to terrorist organizations. While many States have insufficient antimoney-laundering laws and technical capacity, the evasion techniques of terrorists are highly developed and many terrorist funds have a lega l origin and are hard to regulate.

150. Member States that have not yet done so should actively consider signing and ratifying all 12 international conventions against terrorism, and should adopt the eight Special Recommendations on Terrorist Financing issued by the Organization for Economic Cooperation and Development (OECD)-supported Financial Action Task Force on Money-Laundering and the measures recommended in its various best practices papers.

151. The Security Council has played an important role in filling gaps in counter-terrorism strategy. Since the early 1990s, the Security Council has attempted to weaken State support for and strengthen State resistance to terrorism. From 1992 onwards, the Security Council applied sanctions against individuals and States that supported terrorism — including, in 1999 and 2000, Osama Bin Laden and Al-Qaida and the Taliban. The initial response by the Security Council to the terrorist attacks of 11 September 2001 was swift and impressive. Security Council resolutio n 1373 (2001) imposed uniform, mandatory counter-terrorist obligations on all States and established a Counter-Terrorism Committee to monitor compliance and to facilitate the provision of technical assistance to States.

152. However, the Security Council must proceed with caution. The way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions. The Al-Qaida and Taliban Sanctions Committee should institute a process for reviewing the cases of individuals and institutions claiming to have been wrongly placed or retained on its watch lists.

153. Sanctions imposed by the Security Council and the work of its Counter-Terrorism Committee have played an important role in ending the support of some States for terrorism and mobilizing other States in the fight against it. However, Council sanctions against Al-Qaida and Taliban suffer from lagging support and implementation by Member States and affect only a small subset of known Al-Qaida operatives, while a number of States are lagging behind in their compliance with the directives of the Counter-Terrorism Committee. We believe that further action is needed to achieve full implementation of these directives.

3. Assisting States in confronting terrorism

154. Because United Nations-facilitated assistance is limited to technical support, States seeking operational support for counter-terrorism activities have no alternative but to seek bilateral assistance. A United Nations capacity to facilitate this assistance would in some instances ease domestic political constraints, and this can be achieved by providing for the Counter-Terrorism Execut ive Directorate to act as a clearing house for State-to-State provision of military, police and border control assistance for the development of domestic counter-terrorism capacities. The Security Council, after consultation with affected States, should ex tend the authority of the Counter-Terrorism Executive Directorate to perform this function.

155. Non-compliance can be a matter of insufficient will but is more frequently a function of lack of capacity. United Nations Member States and specialized bodies should increase their efforts to provide States with access to effective legal, administrative and police tools to prevent terrorism. To aid this process, the United Nations should establish a capacity-building trust fund under the Counter-Terrorism Executive Directorate.

156. If confronted by States that have the capacity to undertake their obligations but repeatedly fail to do so, the Security Council may need to take additional measures to ensure compliance, and should devise a schedule of predetermined sanctions for State non-compliance.

4. Defining terrorism

157. The United Nations ability to develop a comprehensive strategy has been constrained by the inability of Member States to agree on an anti-terrorism convention including a definition of terrorism. This prevents the United Nations from exerting its moral authority and from sending an unequivocal message that terrorism is never an acceptable tactic, even for the most defensible of causes.

158. Since 1945, an ever stronger set of norms and laws — including the Charter of the United Nations, the Geneva Conventions and the Rome Statute for the International Criminal Court — has regulated and constrained States’ decisions to use force and their conduct in war — for example in the requirement to distinguish between combatants and civilians, to use force proportionally and to live up to basic humanitarian principles. Violations of these obligations should continue to be met with widespread condemnation and war crimes should be prosecuted.

159. The norms governing the use of force by non-State actors have not kept pace with those pertaining to States. This is not so much a legal question as a political one. Legally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome Statutes. Legal scholars know this, but there is a clear difference between this scattered list of conventions and little -known provisions of other treaties and the compelling normative framework, understood by all, that should surround the question of terrorism. The United Nations must achieve the same degree of normative strength concerning non-State use of force as it has concerning State use of force. Lack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. Achieving a comprehensive convention on terrorism, including a clear definition, is a political imperative.

160. The search for an agreed definition usually stumbles on two issues. The first is the argument that any definition should include States’ use of armed forces against civilians. We believe that the legal and normative framework against State violations is far stronger than in the case of non-State actors and we do not find this objection to be compelling. The second objection is that peoples under foreign occupation have a right to resistance and a definition of terrorism should not override this right. The right to resistance is contested by some. But it is not the central point: the central point is that there is nothing in the fact of occupation that justifies the targeting and killing of civilians.

161. Neither of these objections is weighty enough to contradict the argument that the strong, clear normative framework of the United Nations surrounding State use of force must be complemented by a normative framework of equal authority surrounding non-State use of force. Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all.

162. We welcome the recent passage of Security Council resolution 1566 (2004), which includes several measures to strengthen the role of the United Nations in combating terrorism.

163. Nevertheless, we believe there is particular value in achieving a consensus definition within the General Assembly, given its unique legitimacy in normative terms, and that it should rapidly complete negotiations on a comprehensive convention on terrorism.

164. That definition of terrorism should include the following elements:

  1. Recognition, in the preamble, that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;
  2. Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;
  3. Reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);
  4. Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act”.