Abstract
This chapter focuses on a critical examination of the process unleashed by the adoption of the United Nations Security Council (UNSC) Resolution 1373 on the aftermath of the 9/11 attacks. The 1373 process has raised questions about the authority and legitimacy of the UNSC and the extent to which it is bound by human rights norms and standards. Drawing on theoretical insights from international relations and international law and employing content analysis and process tracing, this study assesses member states’ country reports submitted under the 1373 process and explores the factors that have constrained the “humanization” of the UNSC’s counterterrorist discourse. While some progress has been achieved since the initial stages of the “global campaign against terrorism,” serious accountability challenges persist, and the chapter concludes by identifying some of these challenges and offers suggestions on how to address them.
An earlier and shorter version of this chapter will appear in Alison Brysk and Michael Stohl (eds.) Contracting Human Rights. Crisis, Accountability, and Opportunity. Edward Elgar, 2018.
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Notes
- 1.
The main point here is that states may, and occasionally do, violate their human rights obligations while implementing mandatory UNSCR resolutions. The question arises as to the responsibility incurred by the UNSC when states commit violations in observance of its resolutions. In addition, as one analyst has noted, challenges to UNSCR resolutions have been directed at states that have ratified human rights treaties; Vera Gowlland-Debbas, “The Security Council as Enforcer of Human Rights,” in Fassbender (2011).
- 2.
On the concept of accountability and its role in limiting abuses of power in international affairs, see Grant and Keohane (2005).
- 3.
While some references will be made to the 1267 sanctions regime, the focus here is on the 1373 process.
- 4.
By humanization, I refer to the process of rendering the discourse more receptive to human rights norms and standards.
- 5.
As the ICJ noted in the Certain Expenses case, “The primary place ascribed to international peace and security is natural, since the fulfillment of the other purposes will be dependent upon the attainment of that basic condition”; ICJ Reports (1962).
- 6.
In this context, typical resolutions include 688 (1991-Iraq), 770 (1992-Bosnia and Herzegovina), 794 (1992-Somalia), 929 (1994-Rwanda), 1199 (1998-Kosovo), and 1264 (1999-East Timor).
- 7.
For example, in the UNSC meetings preceding the adoption of UNSCR 232 imposing mandatory economic sanctions and embargo on arms and ammunition against the government of Southern Rhodesia, many state representatives made direct references to the link between the continuing existence of an “illegal racist regime” and continuing threats to international peace and security; among others, see the statement by Mr. El-Farra, the delegate from Jordan: “…the answer to such rebellion is condemnation and suppression. It amounts to invasion against the right of the majority. The answer to such invasion and aggression is Chap. 7;…” United Nations Security Council Official Records (1966). UNSCR 232 determined that the situation in Southern Rhodesia constituted a threat to international peace and security and reaffirmed “the inalienable rights of the people of Southern Rhodesia to freedom and independence in accordance with the Declaration on the Granting of Independence to Colonial Countries and Peoples…”; December 16, 1966.
- 8.
In recent years, increasing attention has focused on the question of the human rights obligations of organs and specialized agencies of the UN system. For recent treatments of this issue in the context international financial institutions, see Clair Apodaca, “Expanding Responsibilities: the consequences of World Bank and IMF policies on child welfare,” in Apodaca (2017); and Salomon.
- 9.
For a useful attempt to synthesize the different threads of this debate, see Bennoune.
- 10.
Ibid, pp. 2–14.
- 11.
This of course takes us back to Articles 1 and 2 on the purposes and principles of the organization.
- 12.
Needless to say, this is not an exclusive list, but it includes the main provisions relevant to the argument that follows. One could add here Articles 55(c) and 56 of the Charter.
- 13.
Bennoune, supra note 9, p. 8.
- 14.
This argument is consistent with the ordinary meaning contextual approach to treaty interpretation.
- 15.
See, for example, Henckaerts and Doswald-Beck (2005). While the methodology of this study has been criticized on several fronts, it does constitute a key point of reference for all subsequent discussions on the content and reach of customary IHL rules; see Bellinger and Haynes (2007); and the author’s response in Henckaerts (2007).
- 16.
For a similar view, see Akande (2009). I do disagree with Akande though on the idea that Art. 103 only becomes relevant when the question arises as to whether ultra vires UNSC resolutions create any obligations for UN members.
- 17.
The “usual suspects” would include the prohibition of genocide, of slavery and slave trade, of torture, of racial discrimination, and the promotion of the right of self-determination, among others. It is important to emphasize at least here because an argument can be made that other fundamental norms should be included, for example, due to process norms. While it is true that these are derogable under the ICCPR, such derogability needs to be qualified by the fact that their violation can impact non-derogable norms, as noted in the Human Rights Committee’s General Comment 29. On this, see discussion in the section on member states’ legislation and administration of justice practices.
- 18.
See remarks by Keohane (1997). Keohane discusses both realism/neorealism and institutionalism under what he calls the “instrumentalist optic.”
- 19.
See Mike Smith, The role of the United Nations in Counter-Terrorism, Keynote address at the Policing Across Borders Workshop, John Jay College of Criminal Justice, City University of New York, 13 December 2007 (on file with the author).
- 20.
Ibid.
- 21.
It is important to stress this point because several approaches can be included under this rubric; some of them are purely normative; others combine elements of normative and rationalist approaches. I would include here the solidarist variant of the international society school. It is beyond the scope of this chapter to address this issue.
- 22.
I have addressed aspects of the UNSC’s expanding agenda in “The Challenges and Perils of Normative Overstretch,” in Cronin and Hurd (2008). Here there is a convergence between certain liberal institutionalist, international society, and constructivist arguments, since international organizations, such as the UN, are seen as contributing factors in promoting state cooperation to address these new challenges and these challenges reflect changes in the normative environment concerning the appropriateness of addressing them.
- 23.
See earlier discussion.
- 24.
For more on this, see note 19.
- 25.
United Nations Security Council Resolution 731 of 21 January 1992 and United Nations Security Council Resolution 748 of March 31, 1992 (Libya); United Nations Security Council Resolution 1189, S/RES/1189, 13 August 1998 (on the Embassy bombings) and United Nations Security Council Resolution 1267, S/RES/1267, 15 October 1999 (on Afghanistan).
- 26.
Szasz (2002).
- 27.
See Alvarez (2003).
- 28.
Ibid, p. 875. This was not the only development that rekindled the debate, but it was a key contributing factor. For a discussion of the key characteristics of Hegemonic International Law and the way that dominant states interact with international law, see Vagts (2001) and Krisch (2005), esp. pp. 396–399. See also the brief note in the appendix.
- 29.
For more on this, see Johnstone (2008), “The Security Council as Legislature,” in Cronin and Hurd, supra note 22, pp. 81–84.
- 30.
Simma et al. (2002).
- 31.
Prosecutor v. Dusko Tadic a/k/a “DULE,” Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, para. 31.
- 32.
It is worth noting that the UNSC meeting in which UNSCR 1373 was adopted lasted only 5 min. There was no discussion; United Nations Security Council 4385th meeting. Friday, 28 September 2001, S/PV.4385, https://documents-dds-ny.un.org/doc/UNDOC/PRO/N01/557/31/PDF/N0155731.pdf?OpenElement. In the case of UNSCR 1368, the meeting lasted 45 min with statements made only by UNSC members.
- 33.
Johnstone, supra note 29, p. 82.
- 34.
These reasons are discussed in Johnstone, pp. 82–84.
- 35.
- 36.
For more on this, see Hall and Bierstecker (2002), and Cronin and Hurd, note 22.
- 37.
Cronin and Hurd, Introduction, note 22, p. 6.
- 38.
Allen Buchanan, “Political Legitimacy and Democracy,” cited in Lowe et al. (2008).
- 39.
See also remarks in ibid, p. 31.
- 40.
The list is not exhaustive. One study on UNSC authority included deliberation and delegation to the list; Cronin and Hurd, Assessing the Council’s authority in Cronin and Hurd, supra note 22, pp. 202–206. Part of the following discussion on precedent and consensus draws from that study to which the author was one of the contributors.
- 41.
UNSC action to protect civilian populations and to establish accountability mechanisms, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), are examples of this.
- 42.
Cronin and Hurd, note 22, p. 206.
- 43.
For the texts of the international conventions dealing with terrorism issues, see http://www.un.org/en/sc/ctc/laws.html
- 44.
Here is where arguments about Hegemonic International Law (HIL) become relevant. However, as the discussion below will show, there is no evidence that this approach generated any sustained argumentation, let alone any incentives to induce compliance among other states. The delinking of human rights considerations from counter-terrorism fell on very sympathetic ears, at least during the initial phase of the “war on terror.”
- 45.
In one of the resolution’s paragraphs in which a call is issued for all states to “become parties as soon as possible to the relevant international conventions and protocols relating to terrorism,” the ICSFT is singled out for special reference.
- 46.
See Alvarez, supra note 27. In fact, the only reference to human rights in SCR 1373 relates to the granting of refugee status. It asks states to take into consideration, before granting refugee status, “international standards of human rights,” (among other things), so as to ensure “that the asylum seeker has not planned, facilitated, or participated in the commission of terrorist acts,” para 3(f).
- 47.
United Nations Security Council, 4385th meeting Friday, 28 September 2001, S/PV.4385.
- 48.
Sir Jeremy Greenstock, United Nations Security Council 445 3rd meeting, 18 January 2002, S/PV.4453, p. 5. See also Human Rights Watch, Hear No Evil, See No Evil: The U.N. Security Council’s Approach to Human Rights Violations in the Global Counter-Terrorist Effort, Human Rights Watch Briefing Paper, August 10, 2004, p. 6.
- 49.
Ibid.
- 50.
https://www.un.org/sc/ctc/about-us The discussion that follows on the requirements of the resolution draws in part on Andreopoulos (2011). For the full text of UNSCR 1373, see http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1373(2001).
- 51.
There is wide variation in the reports submitted by states. By the end of 2006, which is when the CTC decided not to make public anymore the reports submitted by states, all (at that time) 192 member states had submitted reports, for a total of 706 reports (if one adds the Cook Islands, the total number of reports is 709). The reports vary widely in number (e.g., Chad submitted only one report during this period, while Argentina six), in length and in quality; for the texts of these reports, see https://www.un.org/sc/ctc/resources/assessments. In addition to member states, two regional organizations, OSCE and EU, and one UN mission (UNMIK) submitted reports.
- 52.
Ibid. The HRC received 55 country reports and 1 report from UNMIK.
- 53.
Subsequent country reports (after the initial one) submitted to the CTC often include certain questions asked by the CTC before providing responses. In other instances, answers are provided without being preceded by some of the questions asked by the CTC. However, there is no access to the communications prepared by the CTC and addressed to the member states to which the countries’ follow-up reports are responding.
- 54.
To bring one example, in addressing the issue of special counter-terrorist measures applicable in criminal proceedings, Egypt’s fourth report to the CTC indicated that “cases relating to offences of this type are then tried by High of State Security Courts (emergency courts),” United Nations Security Council. Letter dated 20 April 2004 from the Permanent Representative of Egypt to the United Nations addressed to the Chairman of the Counter-Terrorism Committee, S/2004/343, 23 April 2004. There is no reference to this issue in the two follow-up reports (2005 and 2006) submitted by Egypt to the CTC.
- 55.
From the reports examined so far (35 reports to the HRC and 144 reports to the CTC), we have found only one case, Paraguay, in which the reporting state indicated resistance to the implementation of the recommendations due to their adverse human rights implications, S/2004/375, 10 May 2004. This communication reinforces our argument about CTC’s insensitivity to human rights issues. We have not yet examined individual petitions submitted to the HRC during this period. This will be done during the next phase of our project.
- 56.
The only occasions in which human rights issues were raised in this process were in reports that were submitted at the very end of this period, after the adoption of UNSCR 1624 (2005). Before the CTC switched to PIAs, some questions about the implementation of UNSCR 1624 were included in the CTC’s interaction with member states under the 1373 process. The key question here, following on the wording of UNSCR 1624, was “what is country X doing to ensure that any measures taken to implement paragraphs 1, 2 and 3 of Resolution 1624 (2005) comply with all its obligations under international law in particular international human rights law, refugee law and humanitarian law?” Judging from the reports reviewed so far, responses vary widely. For example, Egypt, in its sixth and final report, gave a very general and vacuous answer to the effect that the country had ratified all relevant agreements and “all levels and types of courts are obligated to apply and implement them”; the Republic of Korea, in its fifth and final report, provided a very laconic answer: “we do not have much to elaborate on this topic”; El Salvador, in its sixth and final report, did not address any Resolution 1624-related issues; and last, but not least, Uzbekistan, in its fifth and final report, responded to this question by focusing, almost exclusively, on attacking UNHCR.
- 57.
United Nations Security Council Resolution 1456, S/RES/1456 (2003), 20 January 2003. It is instructive to note here that, during the meeting that led to the adoption of UNSC 1456, only 3 out of the 17 speakers addressed the importance of human rights in counter-terrorism: the UN Secretary-General, the Minister for Foreign Affairs of Germany, and the Minister for Foreign Affairs of Mexico. No one from the P-5 made any reference to human rights, and Sir Jeremy Greenstock, then chair of the CTC, was likewise silent on this issue; United Nations Security Council, 4688th meeting, S/PV.4688, 20 January 2003.
- 58.
Hear No Evil, See No Evil, note 48, p. 8.
- 59.
United Nations Security Council (2001); and ibid, pp. 8–9.
- 60.
See subsequent reports by Egypt:
- 61.
Ibid; and Prue.
- 62.
Report submitted by Algeria to the Security Council Committee established pursuant to resolution 1373 (2001), S/2001/1280, 27 December 2001.
- 63.
See subsequent reports submitted by Algeria: S/2002/972 and S/2003/723; note 51.
- 64.
S/2004/324; note 51.
- 65.
Examination of Reports Submitted by States Parties under Article 40 of the Covenant. Third Periodic Report. People’s Democratic Republic of Algeria, CCPR/C/DZA/3, 7 November 2006.
- 66.
Consideration of Reports submitted by States Parties under Article 40 of the Covenant. Concluding Observations of the Human Rights Committee. Algeria, CCPR/C/DZA/CO/3,
12 December 2007.
- 67.
Ibid.
- 68.
Philippine Action and Initiatives Against Domestic and International Terrorism, 27 December 2001, S/2001/1290.
- 69.
United Nations. International Covenant on Civil and Political Rights. Concluding Observations of the Human Rights Committee: Philippines: Philippines. 01/12/2003. CCPR/CO/79/PHL.
- 70.
Ibid.
- 71.
Global survey of the implementation by Member States of Security Council resolution 1373 (2001), S2016/49, 20 January 2016; https://www.un.org/sc/ctc/wp-content/uploads/2016/10/Global-Implementation-Survey-1373_EN.pdf
- 72.
Ibid.
- 73.
See Flynn. The key principle in this context is dual criminality according to which a person may only be extradited if her/his actions constitute offenses under the criminal law of both the requesting and the requested state.
- 74.
Ibid.
- 75.
International Covenant on Civil and Political Rights. General Comment No. 29. States of Emergency (Article 4); http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf
- 76.
Consideration of reports submitted by states parties under Article 40 of the Covenant. Concluding observations of the Human Rights Committee. Colombia; http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fCO%2f80%2fCOL&Lang=en
- 77.
Report of the Republic of Tajikistan submitted to the United Nations Counter-Terrorism Committee pursuant to paragraph 6 of Resolution 1373 (2001); https://documents-dds-ny.un.org/doc/UNDOC/GEN/N04/669/99/PDF/N0466999.pdf?OpenElement
According to the report, these crimes included terrorism and sabotage.
- 78.
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT. Concluding observations of the Human Rights Committee. TAJIKISTAN; http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2f2007%2f22%2c%20paras.%20441-519&Lang=en
- 79.
Flynn, note 73.
- 80.
Global survey of the implementation of Security Council resolution 1373 ( 2001 ) by Member States. Compiled by the Counter-Terrorism Committee 2011; http://www.un.org/en/sc/ctc/docs/2011-globalsurvey1373.pdf
- 81.
Global survey of the implementation by Member States of Security Council resolution 1373 (2001), note 71.
- 82.
Author’s emphasis; quoted in Huq (2006), p. 32.
- 83.
Although our research of all the state reports has yet to be completed, there is nothing that has been found so far that would challenge this admittedly preliminary finding.
- 84.
Office of the High Commissioner for Human Rights, Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures, http://www.un.org/en/sc/ctc/docs/rights/2002_09_23_ctcchair_note.pdf
- 85.
Ibid.
- 86.
Human Rights Committee Briefed on Work of Counter-Terrorism Committee. Press Release HR/CT/630, 27/03/2003.
- 87.
Ibid.
- 88.
Ibid.
- 89.
Hear No Evil, See No Evil; supra note 48.
- 90.
Ibid, p. 3.
- 91.
Ibid, p. 4.
- 92.
Human Rights Watch, Human Rights and Counter Terrorism. Briefing to the 59th Session of the UN Commission on Human Rights; http://www.hrw.org/legacy/un/chr59/counterterrorism.htm
- 93.
Lawyers Committee for Human Rights (2003).
- 94.
Ibid, p. 75.
- 95.
Ibid, p. i.
- 96.
Both appointments were made in 2005.
- 97.
Statement by Mr. Martin Scheinin, Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism. Counter-Terrorism Committee, 24 October 2005 (on file with the author). It is not clear from his statement how many reports he reviewed in order to identify these trends.
- 98.
Ibid.
- 99.
Ibid.
- 100.
See, for example, Nigel Rodley’s separate individual opinion (concurring) in the Sayadi and Vinck case, United Nations (2008).
- 101.
It is important to reemphasize that though there is a lot of blame that could be laid on the hegemon’s doorstep; there were many willing accomplices among member states, as their reports to the CTC indicate.
- 102.
See Post (2012).
- 103.
Salvatore Zappala, “Reviewing Security Council Measures in the Light of International Human Rights Principles,” in Fassbender, note 1, esp. pp. 185–186.
- 104.
See note 71. In 2013, PIAs were replaced by the Detailed Implementation Survey (DIS) and the Overview of Implementation Assessment (OIA).
- 105.
- 106.
United Nations Economic and Social Council, Question of the Human Rights of Persons Subjected to Any Form of Detention or Imprisonment. Study of the implications for human rights of recent developments concerning situations know as states of siege or emergency. Special Rapporteur:
Mrs. N. Questiaux; E/CN.4/Sub.2/1982/15, 27 July 1982; and United Nations, Economic and Social Council, The Administration of Justice and the Human Rights of Detainees. Question of Human Rights and States of Emergency. Final Report of the Special Rapporteur, Mr. Leandro Despouy; E/CN.4/Sub.2/1997/19/Add. 1, 9 June 1996.
- 107.
- 108.
Rajagopal (2003).
- 109.
See Assessing the New Normal, note 93.
- 110.
See also Bennoune, note 9.
- 111.
This suggestion echoes a broader proposal that has been made for follow-up visits to assess the overall implementation of the recommendations agreed by the CTC and the visited member states; see Millar (2017).
- 112.
Since 2005, there have been 133 CTED country visits covering about 95 states. A human rights officer has participated in about 40 of these visits (these numbers cover the period until November 2017).
- 113.
Parliamentary Assembly Council of Europe (2008). United Nations Security Council and European Union blacklists; available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17618&lang=en
- 114.
At this stage, it is difficult to validate empirically progress beyond the discursive level. This problem can be partially addressed by the abovemetioned systematic follow-up on the country visits and assessments.
- 115.
Especially if there is another 9/11 type of attack.
- 116.
For related discussion, see Vagts and Alvarez, notes 27 and 28; Clark, note 35; and Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council, Princeton University Press, 2007.
- 117.
A good example of such an act was the US decision to unilaterally use force against Iraq in March 2003. Although the United States led a “coalition of the willing,” this act is properly designated as unilateral since the UNSC refused to authorize such military action. From a rule-based perspective, the critical question is whether the United States is and will, in the foreseeable future, remain a lawbreaker as a result of the preventive use of force or whether the designation “lawbreaker” is temporary and future developments may determine that the United States is on its way of creating a new customary rule on the permissible uses of force. Some analysts have treated this incident as an attempt by the United States to redefine the doctrine of preemption; see the discussion in Ian Hurd, “Breaking and Making Norms: American Revisionism and Crises of Legitimacy,” International Politics, vol. 44 (2007), esp. pp. 198–203. I do not share this interpretation. Whatever the legal effect of US action in 2003, I view it as an attempt to redefine the rule governing the permissible uses of force for the purposes of self-defense, not the doctrine of preemption, by adding prevention to preemption. It is beyond the scope of this paper to elaborate further on this issue.
- 118.
For a discussion along similar lines, see Hurd, ibid, pp. 200–201.
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Appendix
Appendix
A Brief Note on Hegemonic International Law (HIL)
The ability to shape rules by a hegemonic power through the collective processes of international law can take one of two forms: (1) through sheer command or (2) through a process which entails social/communal acceptance of the hegemonic power’s “leadership” role.Footnote 116 Taking into consideration that general (state) practice is the source of customary law formation, it is primarily the degree of social acceptance of the hegemon’s unilateral behavior that will determine its rule-affirming or rule creating potential. More specifically, what at juncture X may appear as an act of imposing the hegemon’s will, at juncture Y may emerge as an act of leadership, anchored within a certain social context of legitimacy.
There are other occasions though in which the act in question will not gain the necessary social acceptance to be considered rule-affirming, or rule-creating. In such situations, the act in question will be highly contested, due to its “dictated” nature, and remain in a sort of a legal limbo. Certain actors will consider it as potentially paving the way for the creation of a new rule, therefore as an act which, while it delegitimizes an existing rule, also contains the seeds of normative reconstitution, while others will consider it as clearly unlawful.Footnote 117 There are many factors contributing to command and social acceptance-oriented forms, as well as to the transition from one form to the other, factors that are shaped by a combination, in varying degrees, of material and normative considerations. A key factor in the transition from one form to another is the nature of the supporting arguments. For example, does the hegemon offer a public, specific and grounded in existing norms and rules explanation for its action/failure to act, or does the hegemon opt for vacuous statements about acts that are not publicly acknowledged and lack grounding in such norms and rules?Footnote 118 These forms are represented in the diagram that follows:
Any detailed examination of the evolution of UNSC’s counter-terrorism policies and practices would probably need to be examined through the lens of an ad hoc coalitional hegemonic law model, in which these policies and practices advanced by the superpower are shared/adopted by a shifting coalition of states; the coalition at any point in time is constructed on the basis of participating states’ interests and shared understandings of the issues at stake in a particular area. Such a model would combine elements of leadership and command but would not account for a particular challenge posed by the evidence unearthed so far by looking at the 1373 process : while the form and content of the review process was partially the result of the arguments offered by the “hegemon” combined with exchanges among member states in an effort to shape the parameters of the response, it was also the result of the states’ self-serving and very active use of the said process to legitimize often questionable (to say the least) domestic legislative and administration of justice practices.
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Andreopoulos, G.J. (2018). The Quest for Accountability: The Resolution 1373 Process at the United Nations Security Council. In: Andreopoulos, G., Barberet, R., Nalla, M. (eds) The Rule of Law in an Era of Change. Springer Series on International Justice and Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-89908-4_4
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