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The sweeping overhaul of the Security Council's counter-terrorism measures that was recently recommended by the Special Rapporteur on the promotion and protection of human rights while countering terrorism, was politely rebuffed by the Council's counter-terrorism committees. During the regular six-month open briefing by the Chairpersons of the Council's three counter-terrorism committees on 15 November 2010, the Chairpersons acknowledged the 'criticisms' that had been levelled against their committees. However they then pointed to reforms they had undertaken to improve their methods of work, transparency and coordination, and insisted they operated in a manner consistent with human rights principles. This was a view widely shared by more than 25 States that took part in the discussion. India was the lone voice to suggest the Security Council should follow-up on the Special Rapporteur's recommendations.
In his final report to the General Assembly (A/65/258), the Special Rapporteur, Mr Martin Scheinin, concluded that two of the Security Council's three counter-terrorism responses lacked a legal basis for their operation. The Al-Qaida and Taliban sanctions regime initiated by Resolution 1267 in 1999, and Resolution 1327, adopted in the wake of 11 September 2001, were in his view, operating outside the scope of the UN Charter. He recommended they be merged into a single resolution, not adopted under Chapter VII of the UN Charter.
The Special Rapporteur acknowledged that when it was introduced, Resolution 1267 was a 'justified' response to a specific threat to international peace and security by a defined group of persons in Afghanistan.(1) However its subsequent modification had transformed it into an 'open-ended resolution on sanctions' that was no longer limited in time or space. According to the Special Rapporteur, the Security Council did not have the authority to use its Chapter VII powers to maintain a permanent list of terrorist individuals and entities anywhere in the world, and to impose its application upon all Member States as a legally-binding Charter obligation. He concluded it was 'essential that listed individuals and entities have access to domestic courts to challenge any measure implementing the sanctions that are the result of political decisions taken by diplomats'.
The Special Rapporteur levelled stronger criticisms at Resolution 1327. It was the first instance where the Security Council had imposed on all Member States a number of general permanent obligations, not connected to a specific conflict situation, or for a limited period of time.(2) The Special Rapporteur argued this 'quasi-legislative measure' was tantamount to the Security Council establishing new, binding rules of international law - a responsibility that the Charter assigned only to the General Assembly. Adding to the problem was the fact there was no universally accepted and precise definition of terrorism. Nine years on, the continued application of Resolution 1327 'cannot be seen as a proper response to a specific threat to international peace and security.' Not only did he argue the Security Council had overstepped its authority, he suggested the resolution posed a risk to a number of international human rights standards, including guarantees of due process; the right to privacy; freedom of expression, association and assembly.
The main message that the Special Rapporteur sought to impress on States was the need to take further steps to enhance due process rights and incorporate other human rights principles. Although he welcomed the steps taken by the Council to reform its terrorist listing and de-listing procedures, including the establishment of the Office of the de-listing Ombudsman in 2009 (Resolution 1904), his report detailed the substantial obstacles that remained.(3) He stressed that so long as the current regime was in place, it was itself a 'threat to an effective and efficient fight against terrorism', and compromised the 'legitimacy, acceptability and acceptance of the UN's counter-terrorism framework.'
The Special Rapporteur recommended the Security Council use the tenth anniversary of Resolution 1327 (April 2011) as the impetus to merge 1267 and 1373 into a single resolution. This new resolution should not be adopted under Chapter VII of the Charter, as this would enable the Security Council to develop more tailored and flexible approaches. The new resolution should include explicit human rights provisions and reaffirm the obligation of the UN to comply with international human rights law. Further, the new counter-terrorism regime should be State-led. The UN's role should be focused on providing advice and assistance, including the collection of evidence for States, so that States could take on the responsibility of compiling and reviewing terrorist lists.
Response of Member States in the Third Committee
The Special Rapporteur's interactive dialogue with the Third Committee of the General Assembly on 26 October 2010, provided a fore-taste of the negative reaction that would follow in the Security Council. Although only a handful of States engaged in the discussion in the Third Committee, the Permanent Members of the Security Council argued the UN's counter-terrorism framework complied with the Charter and was effective. The US said the ongoing threat of terrorism was serious enough to warrant the Security Council's current approach to continue. It questioned whether some of the Special Rapporteur's recommendations regarding the operation of UN field presences had ventured outside the scope of counter-terrorism and into peacekeeping operations. The Russian Federation went further, 'radically disagreeing' with the recommendations. It categorically stated that the Security Council was operating in accordance with the UN Charter, and suggested that the Special Rapporteur had exceeded his mandate by considering the lawfulness of Security Council actions. This undermined all special procedures of the Human Rights Council and was 'very hurtful' on the eve of the review of that body.
The UK took a more moderate position, acknowledging that despite the appointment of the Ombudsman, further reforms were needed in relation to the implementation of Resolution 1267 to ensure due process protections were in place. Nonetheless, the UK was adamant that the Security Council was not exceeding its Chapter VII powers. Norway (not a member of the Security Council) said it shared the Special Rapporteur's concerns, particularly in regard to the continuing limits to fairness and transparency associated with the listing and de-listing process under Resolution 1267. The EU stressed the need to mainstream human rights into the UN's work on counter-terrorism, and in this respect welcomed the set of Basic Human Rights Reference Guides to assist Member States that was recently developed by the human rights working group of the Counter-Terrorism Implementation Taskforce.
Response in the Security Council
Although the Chairpersons of the so-called 1267 and 1373 counter-terrorism committees both avoided referring to the Special Rapporteur by name, they used their briefing to the Security Council to dismiss his recommendations. Ambassador Mayr-Harting of Austria, the Chair of the 1267 Committee, acknowledged that over the last two years, his Committee had received growing criticism from a range of quarters, including States, parliaments, courts and individuals. They were all concerned about the extent to which due process and human rights principles were upheld by the Committee. The Ambassador assured the Security Council that the Committee had listened to these voices and taken important steps to address many of their concerns. This had been demonstrated by the establishment of the Ombudsman and the review of the Consolidated List entries.(4) Pointing to a recent judgement by the European General Court that showed that 'challenges remained', he was confident the Committee would undertake additional reforms to meet those challenges.
Ambassador Apakan of Turkey, the Chair of the Counter-Terrorism Committee monitoring the implementation of Resolution 1373, emphasised the more 'strategic and transparent approach' it was taking in order to meet the continuing threat of terrorism. This included its practice, in conjunction with the Counter-Terrorism Committee Executive Directorate (CTED), of conducting country visits and providing technical assistance and capacity-building support. The Committee was also engaging the broader membership of the UN in briefings and thematic debates, and CTED was gaining valuable insights into regional situations by organising workshops and seminars at this level.
The States that took part in the debate welcomed the steps the committees had taken to improve their effectiveness, transparency and relevance, and most called on them to continue to evolve to keep pace with the terrorism threat. Although many States highlighted ongoing challenges, notably the due process limitations in relation to the 1267 Committee,(5) no State advocated the implementation of the Special Rapporteur's recommendations. India stood out as the only State to specifically refer to his work and suggest it warranted 'further consideration'. In contrast, France warned against the condemnation of the counter-terrorism sanctions regime, arguing a coordinated, collective approach was critical.
Footnotes
(1) The Committee established under Resolution 1267, also known as the Al-Qaida and Taliban Sanctions Committee, monitors implementation of the provisions of that resolution. The resolution provides the Security Council with the authority to: freeze funds and financial assets of designated individuals and entities which are listed by the Committee; and apply a travel ban and arms embargo on designated individuals or entities.
(2) Resolution 1373 obliges all States to criminalise assistance for terrorist activities, deny financial support and safe haven to terrorists, and to share information about groups planning terrorist activities.
(3) The Ombudsman does not have the decision-making power to overturn the listing decision of the Counter-Terrorism Committee, or to even make recommendations to the Committee. The de-listing decisions are still taken on a consensus basis and confidentially by the Committee, which is a political body, rather than a judicial one. Further, access to information by the Ombudsman is dependent on the willingness of States to disclose it, and there is no obligation on the Committee to publish in full the Ombudsman's report, or to fully disclose information to a petitioner. See para.56 of the Special Rapporteur's report (A/65/258).
(4) The review, the first of its kind, resulted in a List of 488 entries and the removal of 45 names. Every entry will be reviewed every three years.
(5) Brazil, Japan, Lebanon, Nigeria, Norway (on behalf of the like-minded States), Pakistan, Russian Federation, UK. The EU also spoke to this point, calling for procedural guarantees for individuals and entities designated by the Committee, which would contribute to the overall credibility of the UN framework. |
