The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (105 page)

In analysing the Council’s role in this way the chapter ultimately argues that the Council has established new roles for itself and entered into new territory of action in the way in which it has responded to the terrorism threat. Whether that activity can be read as a major step that will ultimately have a constraining impact on terrorism remains an open question.

Security Council activity on terrorism prior to the end of the Cold War was limited at best. The first mention of terrorism at the UN is a 1948 Security Council condemnation of the assassination of Count Bernadotte, the UN mediator in Palestine, as appearing to have been committed by ‘a criminal group of terrorists’.
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This passing mention can hardly be construed as action. In the context of the Cold War, terrorism was not a pressing high priority issue on the agendas of the major powers. This began to change in the early 1970s when an upsurge of terrorist activity prompted a commensurate upsurge in concern on the part of major states, especially the Permanent Members of the Council. The attack on Israeli athletes at the Munich Olympics in September 1972 provides a vivid symbol of the arrival of terrorism as an issue of international attention. The depth of the impact of the Cold War on Council activity, however, extended to terrorism, and was compounded by the connection to Middle East politics.

As a consequence, even when terrorism activity surged, the response of the Council was limited to one resolution in 1970, which calls on member states to take measures to prevent hijackings.
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The Security Council was more active in considering member states’ own reactions to terrorism, although with inconsistent results. The Council condemned the Israeli interception of an Iraqi airliner in August 1973, for example, but could not agree on a reaction to the Israeli raid on Entebbe in 1976.
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The Security Council was not the only channel for concern about terrorism at the international level. The G7, for example, in 1978 and 1986 agreed to undertake various measures against states supporting terrorists or not taking sufficient action against terrorists. The absence of China and the Soviet Union from this grouping probably facilitated agreement, but the absence of the institutional weight and structure of the Security Council meant that while the G7 agreement on action was significant, it was not necessarily effective.
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The lack of action at the Security Council meant that the bulk of the substantive work on terrorism that occurred at the United Nations during the Cold War was carried out in the General Assembly. Although the issue had its own political baggage in that forum, over time, primarily through the Sixth Committee, the General Assembly has worked to develop a series of international conventions, now numbering thirteen, whose goal is to prohibit and limit particular manifestations of terrorist activity. The conventions deal with a range of activity, responding to new terrorist tactics and new thinking on counter terrorism generally. These conventions work to prohibit, inter alia, hijacking, attacks on public spaces, hostage taking, attacks on diplomatic personnel, terrorist bombings, and nuclear terrorism. The General Assembly’s approach – dealing with the nature of attacks – is a product of the inability of member states to agree on an overall definition of terrorism. For a number of policy makers, themselves the product of independence struggles or wars against repressive regimes, the idea of a blanket criminalization of terrorist activity, regardless of the context of the situation, was unacceptable. Unable, even now, to overcome this obstacle, the General Assembly focuses on limiting the method of attack rather than addressing its motive.

In 1996, the General Assembly established a new ad hoc committee on terrorism. Initially tasked to negotiate the convention on nuclear terrorism, the ad hoc committee is now mandated to develop a comprehensive convention on international terrorism. The ad hoc committee has been working on the convention since 1996, but progress continues to be subject to a debate on definitions.

The Council’s post-Cold War willingness to deal with issues of international peace and security broadly defined extended to terrorism. Beginning with action in response to two late-1980s bombings of airliners, the Council took an increasingly active approach to the issue. Sanctions were the initial tool used, aimed at pressuring a member state to comply with ongoing investigations into the incidents by handing over suspects to the appropriate authorities.
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The use of sanctions had a double purpose. On the one hand they served to induce compliance by the targeted state or states. In this respect it can be argued that the Council experienced some success in that Libya eventually handed over the individuals in question, and Sudan increasingly cooperated with counterterrorism efforts. On the other hand, sanctions were also used to send a signal of disapproval, working to delegitimize state support of such activities. In fact, while the Council’s decisions can be characterized as an effort to respond to terrorism, their focus is the non-compliance of member states with specific legal requirements.

The use of sanctions against states formed the basis of the Security Council’s response to terrorist events for the rest of the decade. In response to the bombings of US embassies in East Africa, Council members imposed sanctions against the Taliban regime in Afghanistan, increasing their strength and scope over time.
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In this last instance, in order to oversee the sanctions process and ensure that it was being adequately implemented, the Council created a committee to monitor it.
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It is here, as the Council begins to come to terms with the implications of terrorism in the form of al-Qaeda, that it begins to shift from a case-specific approach to terrorist incidents to one that is more broadly based. In 1999, within a few days of establishing sanctions against Afghanistan, the Council unanimously adopted Resolution 1269, condemning ‘all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation’.
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The resolution went on to call on states to take a series of measures to prevent and suppress terrorist acts and deny safe haven to those planning them; to fully implement existing terrorism conventions; to prevent and suppress financing and preparation for terrorist attacks within their territory; and to cooperate with one another to prevent terrorism. In moving to deal with terrorism as a general phenomenon the Council begins to parallel, if not to overstep, the General Assembly’s role. And in doing so it also sends a signal on the question of definition by stating that such acts are unjustifiable regardless of motivation.

Neither terrorism nor its manifestation in the form of al-Qaeda, therefore, were unfamiliar territory when the attacks of 11 September 2001 occurred. The Council’s response took form in two parts. The day after the attacks the Council passed a resolution condemning the attacks and recognizing the right to self-defence.
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Roughly a fortnight later, the Council passed a second resolution (SC Res. 1373), this one more substantive and comprehensive in scope.

Resolution 1373 requires states to undertake three main types of action:

• a variety of measures relating to suppressing terrorist financing, including the criminalization of provision or collection of funds for terrorist acts, the freezing of financial assets of people who commit or seek to commit terrorist acts, and the prohibition of nationals from making funds and assets available for such people or purposes;

• national measures to ensure non-support of terrorist activity, including the denial of safe haven, bringing those involved to justice, assisting other states in criminal investigations, and maintaining adequate border controls to prevent the movement of terrorists;

• cooperative measures with each other, such as exchanges of information and early warning, ensuring terrorists are not abusing or using the refugee and asylum seekers system, and full implementation of all the relevant international conventions.
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The resolution is important in a number of ways. Whereas the Council could previously have been said to be looming on the outskirts of what was the General Assembly’s purview, it was now firmly within it. Resolution 1373 was not only binding on all member states – in contrast to the Assembly-generated conventions which many member states had yet to sign – but also departed from the usual Council language that calls on states or requests that states undertake certain measures, to indicate that the Council ‘decides that states shall’ implement the following measures. The nature of state requirements are notable more for the fact that they clearly establish a minimum baseline for member state counter terrorist action than in their specifics, although the specifics are not insignificant. The Council took this approach again when, primarily at the instigation of the UK in the aftermath of the 7 July 2005 London bombings, it called on states (rather than requiring them) to take whatever legal measures might be necessary to prohibit the incitement to commit terrorism, to prevent such conduct, and to deny safe haven to those guilty of it.
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A growing concern about the possibility that terrorists might seek to or acquire biological, chemical, or nuclear weapons or material was compounded by the events of 11 September and the revelations relating to the proliferation of nuclear-related knowledge and equipment that occurred under A. Q. Khan in Pakistan. The combined effects of the extent to which knowledge and equipment was more readily available than previously understood and the perception that what some call ‘new
terrorism’ would seek destruction for destruction’s sake were sufficient to generate a Council response.

In April 2004, these concerns brought about Security Council Resolution 1540. Resolution 1540 follows the 1373 model quite closely although its text was subject to a more lengthy negotiation that included states outside the Council.
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It requires state action by using language stating that the Council decides that states shall undertake action rather than calling upon them to do so, and like 1373 it invokes
Chapter VII
. The resolution requires that states

• refrain from supporting non-state actors attempting to acquire, manufacture, possess, transport, transfer or use such weapons and their means of delivery;

• adopt effective laws to prohibit such activities;

• take effective domestic measures to prevent proliferation of such weapons, including adequate accounting procedures, physical protection measures for such materials, effective border controls and national export and trans-shipment controls.
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The resolution is difficult to characterize as either fully about weapons of mass destruction or about terrorism in that it addresses both individually as well as the potential of their combined effects. In establishing requirements for action at the same level of determination as for Resolution 1373, and in agreeing on a resolution directly addressing the proliferation of weapons of mass destruction for the first time, the Council signalled the high level of its concern about all three of these possibilities.

In each of the three cases, the Council called for monitoring of member state progress in meeting the requirements outlined in the resolutions. The result has been a new structure of committee activity working to monitor and assist state counter terrorism efforts as required by the Security Council.

The first of these committees is the committee established by Resolution 1267 to oversee the sanctions imposed on the Taliban regime in October 1999. The Council has adjusted the sanctions regime a number of times since then, moving to include individuals and groups associated with al-Qaeda along with the Taliban and to expand the scope of the sanctions.
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In an effort to improve its efficacy, the Council authorized the creation of a monitoring team and a sanctions enforcement team early on in the process.
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The 1267 Committee is, however, quite different from those that followed in significant ways, all of which derive from the fact that the sanctions regime is a function of the case-specific counter terrorism efforts of the Council. The sanctions regime has specific targets and desired outcomes. There will come a point in time when the sanctions regime may be ended. This stands in contrast to the requirements of the Council’s general counter terrorism approach where states are asked to undertake measures at the national level that affect their own citizens and will be in place indefinitely.

The Council has been particularly innovative with respect to this sanctions regime, expanding it beyond its usual focus on the member state by listing groups and individuals as the target for sanctions, taking the Council into new, not uncontroversial, territory. The 1267 Committee is arguably the most hands-on element of the Council’s work on terrorism. To be effective, the sanctions committee must be continually up to date on the individuals and groups involved in al-Qaeda as well as specific state efforts to control their assets and movements. This is quite a different enterprise from monitoring state legislative activity. The Committee’s work is intensive, and it is constantly working to adapt to the changing nature of the situation on the ground. Drawing on its own monitoring group as well as outside experts, the Committee has worked to develop techniques and principles for action that will be invaluable to the ongoing debate about the desirability for targeted sanctions. Those same characteristics have put the Committee’s activity and the sanctions regime at the forefront of the increasing awareness of the impact of counter terrorist measures on questions of human rights.
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