Security Council’s counter-terrorism measures outside the scope of its powers says UN Special Rapporteur

UN Special Rapporteur on counter-terrorism and human rights, Martin Scheinin, has told the General Assembly today that the counter-terrorism regime created by the Security Council is outside the scope of its powers. The main recommendation contained in the report is that the Security Council should seize the opportunity of the approaching tenth anniversary of its resolution 1373 (2001) to replace resolutions 1373 (2001), 1624 (2005) and 1267 (1999) (as amended) with a single resolution, not adopted under Chapter VII of the Charter of the United Nations, in order to systematize States’ counter-terrorism measures and reporting duties of States under one framework.
“To put it bluntly, while international terrorism remains a very serious threat and constitutes a category of atrocious crime, it is not generally and on its own a permanent threat to the peace within the meaning of Article 39 of the Charter and does not justify exercise by the Security Council of supranational quasi-judicial sanctioning powers over individuals or of supranational legislative powers over Member States,” he said.

He added: “The current situation of the two cornerstones being ultra vires poses risks to the protection of human rights and the international rule of law.  What is equally important is this situation weakens the legitimacy, acceptability and acceptance of the UN counter-terrorism framework, hence constituting a threat to an effective and efficient fight against terrorism.”

Scheinin argued that it is problematic to impose binding permanent obligations for acts of terrorism which have not yet taken place because there is no universally accepted and precise definition of terrorism. He also noted that the rapid progress made in State ratifications of the International Convention for the Suppression of the Financing of Terrorism has, since 2001, provided a proper legal basis for States’ obligations in this field and made redundant the use of Chapter VII powers for the same purpose.

Equally problematic, the human rights expert said, is the Al-Qaida and Taliban sanctions regime initiated by Security Council resolution 1267 (1999) as a reaction to a concrete threat to the peace but subsequently expanded into an open-ended system of sanctions without a link to a specific territory or State.While 1267 could be seen as a temporary emergency measure, “using its Chapter VII powers to maintain a permanent list of terrorist individuals and entities anywhere in a world and to impose its application upon all Member States as a legally binding Charter obligation goes beyond the powers of the Security Council”.  Similarly, resolution 1373 was adopted in the immediate aftermath of the terrorist attacks of 9 September 2001 in a situation when only four States had ratified the International Convention for the Suppression of the Financing of Terrorism.  It was “a shortcut, an emergency measure” to impose upon States the rules of the convention already.  Today there are 173 parties to the Convention and there was no justification for the position that the supranational powers of the Security Council would have to be resorted to in order to have a normative framework for action against terrorism.  Those were the factors that motivated his assessment that 1267 and 1373 were outside the scope of powers granted by the Charter, he said.

While welcoming steps taken by the Security Council to reform the terrorist listing and de-listing procedures, including the establishment of the Office of the delisting Ombudsperson in 2009, Scheinin noted that rights of due process remain at stake. His view on the continuous lack of procedural fairness has recently been confirmed by a decision of the European Union General Court of 30 September 2010.

“It is 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,” he stated. 

The Special Rapporteur recommends to the Security Council replacing the regimes created by resolutions 1373 (2001) and 1267 (1999) with a single resolution that does not carry the binding legal force of Chapter VII of the UN Charter. This would place counter-terrorism measures and reporting obligations of States under one framework. Such a resolution should include explicit human rights provisions and reaffirm the obligation on the United Nations to comply with international human rights law.

The listing of individuals by name at United Nations level, he says, should be replaced by advice and assistance to Member States, including on due process guarantees in maintaining and reporting on national terrorist lists. Rather than listing terrorists, the role of the United Nations would be to extend advice and assistance to States, including the collection of evidence.

The Special Rapporteur observed that the United Nations Global Counter-terrorism Strategy adopted by the General Assembly provides a solid basis for the reforms he is proposing as it contains respect for human rights and the rule of law as one of its pillars.

He emphasized that counter-terrorism measures and the protection of human rights are not contradictory.

“The defence of human rights renders counter-terrorism efforts by States even more effective. Violations of human rights by States are only conducive to providing breading grounds for more terrorism,” he said.

Responding to the question of the representative of Switzerland  about alternatives for a World Court of Human Rights to address breaches, he said that his proposal was geared towards extending accountability so it covered international organizations.  States were subject to a range of mechanisms, but still missing were mechanisms addressing actors other than States.  In today’s age of globalization, which meant that actors of equal weight and significance had the capacity to enjoy human rights anywhere, an accountability gap existed, because accountability was geared towards only States.  Beyond the World Court, there were other things that could be done, such as paying attention to the question of the listing of individuals and to improving due process guarantees or fairness at the United Nations level through the ombudsman.

One important factor would be taking the findings of the ombudsman seriously, so that the ombudsman’s powers would impact justice even without independent decision-making abilities.  One major obstacle was also the requirement of consensus decision-making regarding de-listing.  As long as that existed, international courts hesitated in accepting that there was fairness in due process at the United Nations level.  A national or regional judicial review over the implementation of sanctions was needed.  The Special Rapporteur also noted a distinction between the imposition and implementation of sanctions regarding States.

With regard to the statement of the United States about disagreements concerning the scope of Chapter VII, he said that differences of opinion would remain and that the question of legal parameters and responsibilities of international bodies could not be closed quickly.  A resolution was the creation of mechanisms regarding the accountability of international organizations, such as the World Court of Human Rights.  Problems with the current regime regarding Chapter VII included being faced with a “straightjacket” of being reactive to threats to peace.  It was hard to react against evolving trends if one had to go through legal arguments that a given response was because something was a threat to peace.  It was necessary to move beyond Chapter VII, so that reaction was easier, more legitimate and addressed the evolving trends of terrorism.

Concerning the questions of the representative of the European Union about major challenges to mainstreaming human rights efforts and global trends relating to human rights, he said the global trend was negative, because Governments sought to balance human rights and countering terrorism, when the necessary response was to find a way to counter terrorism within human rights law.  He noted that, within the counter-terrorism task force, there was a gut reaction that, when they heard the human rights view, they wanted to then balance it out by hearing the security view.  However, the reverse should be done — to hear the security view and then the human rights view, so that counter-terrorism would always comply with human rights.  As to the question of how to involve other agencies not dealing with counter-terrorism, he said that conditions conducive to counter-terrorism could be enhanced, including in the field of economic and social development.  It was necessary to help build societies where human rights were fully enjoyed and, hence, any conditions conducive to the spread of terrorism were eliminated at the outset.

Regarding the request by the representative of Norway to elaborate on the reform of such resolutions as 1267, he spoke about replacing Chapter VII authority with the role of advisory and technical assistance by the United Nations.  The current system did not result in equal application in every country of the world and lacked uniformity.  It would likely take a while before the replacement with advice was in place, but, meanwhile, a lot could be done to introduce fairness in the system.

Concerning the statement of disagreement by the representative of the Russian Federation, he noted the country’s clear words and said that they had disagreements as to some of the legal issues, but that he took into account the critical views presented.  It was true that the proposal of the World Court of Human Rights was not likely to be implemented rapidly; however, it was necessary to address the accountability gap and ultimately create momentum to introduce something new at the United Nations level, which might be the World Court or might be something else.  He noted interest in hearing more opinions from the Member States about that issue.

Regarding the question of the representative of Denmark about challenges to institutions such as the counter-terrorism committee, he said that he saw a clear trend towards moving to a targeted and tailored approach with respect to individual countries.  The blunt approach of Chapter VII could be counterproductive, and a proactive approach, which the counter-terrorism committee was capable of providing, was necessary.  He said he was positive that they would deliver results in counter-terrorism only through compliance with human rights.  Also, counter-terrorism institutions were doing a better job than their image currently showed, because the news did not provide a nuanced approach regarding country situations.  He was convinced that moving towards a non-Chapter VII approach would improve results in counter-terrorism.

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