By Ben Saul
It is exceptional that two decades of extensive global counterterrorism regulation and cooperation have proceeded from a normative black gap: the absence of a widespread definition of terrorism. Stability Council Resolution 1373 and successive resolutions have deliberately omitted any definition, in spite of demanding states to get much-achieving legislative and govt action.
On the 1 hand, the Council’s method was tactically outstanding. Since new counterterrorism actions ended up perceived to be urgent right after 9/11, there was no time to get bogged down in the intractable issue of definition, which experienced eluded international settlement for a century. The constrained club of 15 Council customers would have been unlikely to agree. Even if they experienced, their definition would have been not likely to mirror or attract an international consensus, triggering severe compliance troubles in national implementation.
Despite “making” new law, as a political physique the Council seemed pleased with its political intuition, expressed by the then United Kingdom’s Ambassador, Jeremy Greenstock, that “What appears to be, smells and kills like terrorism is terrorism.” Authorized definition was in its place devolved to states in nationwide implementation. Though the Council intrusively demanded considerable domestic laws, individual states ended up commonly information to keep their sovereign discretion to establish and legislate for them selves the which means of terrorism.
Significantly important and principled counterterrorism law and cooperation has occurred primarily based on the Council’s suite of resolutions, despite the lack of a definition. The failure to define terrorism continues, having said that, to significantly impede the usefulness of counterterrorism, its regularity with human rights regulation and intercontinental humanitarian regulation, and the legitimacy and legality of the Council’s workout of its global security powers under the United Nations Charter.
Firstly, from a sensible standpoint, the inevitable divergence between national definitions impairs inter-state cooperation to “bring to justice” terrorists, as the Council calls for. The “dual criminality” need of quite a few extradition and mutual guidance legal guidelines and treaties might preclude cooperation concerning two states if their definitions of terrorism do not include frequent floor. Impunity might accordingly final result the place a state is not able to extradite a human being who could have fully commited a terrorist offence abroad below yet another state’s regulation, but not beneath its possess.
The identical point out might also be unable to prosecute the foreign offender in its own authorized procedure. In the absence of an agreed global definition, a single condition is not demanded to criminalize the similar “terrorist” carry out as one more point out by asserting extraterritorial quasi-“universal” jurisdiction above it. Instead, distinct domestic counterterrorism guidelines sail by like ships passing in the night time. The lawful distinctions are also fertile floor for political tensions the place 1 point out arrives less than stress from a different, or its allies, to aid the latter to implement its terrorism guidelines.
Over and above the criminal regulation sphere, divergent countrywide definitions equally impair cooperation across the spectrum of other actions necessary by Council resolutions. These involve the responsibility on states to themselves chorus from supporting terrorism and to counter terrorist financing, avoid terrorism and support for it, avert the motion of terrorists, tackle abuse of refugee standing, and avoid and suppress the travel of “foreign terrorist fighters.” The similar may be stated of the “soft” counterterrorism agenda expressed as a result of the UN Standard Assembly’s World-wide Counter-terrorism Method and the specialized get the job done of bodies these kinds of as the UN Workplace of Counter-Terrorism, UN Counter-Terrorism Centre, UN Office of Prescription drugs and Criminal offense, and by means of the 42 entities beneath the UN World Counter-Terrorism Coordination Compact.
Secondly, although states might define terrorism for by themselves, it is tricky for them to know no matter whether there is any minimum or core “soft” idea of terrorism that they are however predicted to enact. This matters for a bundle of motives. States are topic to continuing global checking by the Counter-Terrorism Committee Govt Directorate (CTED) and the Fiscal Action Job Pressure (FATF) whose listing of substantial-threat jurisdictions can convey financial expenses. Informal groups, these kinds of as the World wide Counter-Terrorism Discussion board, also make “soft” requirements predicated on “terrorism,” which in switch affect Safety Council and national exercise. Other states may possibly count on cooperation in respect of distinct conduct. Complex guidance may also be premised on ‘soft’ definitions of terrorism.
Stung by human rights criticisms, the Council belatedly presented a non-binding definition of terrorism in Resolution 1566. That definition has been welcomed on human legal rights grounds for the reason that it is so slim. It cumulatively demands: (a) an intention to result in loss of life or severe bodily harm or hostage using, (b) an offence underneath one particular of the 19 existing “counterterrorism” conventions, and (c) a reason (or “specific intent”) to provoke a state of terror in the public or a team of people, or to intimidate a population, or to compel a govt or worldwide business to do or to abstain from performing any act.
The positive aspects of that definition incorporate that it one-way links terrorism to the current conference offenses, which are widely agreed upon, very carefully negotiated through open and participatory treaty processes, and satisfy the basic principle of legality (which include precision and foreseeability) in the definition of crimes. The addition of the private violence and precise intent factors in Resolution 1566 also cuts down the overbreadth of some convention offenses, which are not generally “terroristic” but pursue broader regulatory goals in fields these types of as aviation, maritime, or nuclear security. Many of the conventions also seize not only “public” (that is, political, spiritual, or ideological) violence but also “private” violence, which may well be a lot more like everyday crime than terrorism.
The clear defect in this definition is that it would exclude quite a few functions generally regarded as “terrorism.” In component this is due to the fact the resolution addresses only harm to folks, not other targets of terrorism this kind of as property, methods, infrastructure or utilities, communications, money techniques, the atmosphere, or endangerment of community wellness and security in typical.
Much more pressingly, it is too slender because it confines terrorism to the scope of the current conference offenses. While these deal with some popular terrorist procedures (specifically hostage having and bombings), they were formulated reactively and do not cover all types of terrorism—or even the most prevalent, these as attacks by compact arms. A lot of are also limited to transnational not domestic terrorism, however the Council also requires motion on the latter.
These limits are specifically why a lot of states have enacted additional basic definitions of terrorism, which is also the intention of the Draft UN Convention for the Prevention and Suppression of Intercontinental Terrorism, under negotiation because 2000 through the Common Assembly. The draft convention, like the general part of the definition in the Terrorist Funding Conference 1999, inclusively encompasses terrorism “by any indicates.”
In any celebration, Resolution 1566 has not appreciably affected nationwide follow, and there is very little evidence that the Council or CTED has sought to influence states to restrain or amend their definitions in accordance to it. CTED’s Technical Steering (2020) to states encourages enactment of the counterterrorism convention offenses, and acknowledges only that other definitions of terrorism must comply with human legal rights regulation. Nevertheless, the opaque nature of CTED assessments—most of the time, they are not publicly released—makes it tough to know what exactly CTED expects of national definitions in exercise.
Regularity with Human Legal rights and Humanitarian Legislation
The absence of definition has notoriously led to too lots of countrywide definitions violating international human rights regulation. Specific considerations incorporate infringements of the principle of legality, whereby definitions are not sufficiently distinct or specific to help individuals to foreseeably know the scope of their legal responsibility as nicely discrimination and violations of political freedoms. These challenges are most acute in relation to the several imprecise “preparatory” offenses which the Council needs states to enact, generally compounding the vagueness in the predicate definition of “terrorism” by itself. Abnormal foreign rules may well be nonetheless yet another impediment to worldwide cooperation in which other states’ regulations preclude complicity in rights violations.
Admittedly, Council resolutions have tokenistically (and once more belatedly) urged states to comply with human legal rights when utilizing counterterrorism steps. It is also genuine that the stress is on states themselves to comply with human legal rights, including in defining terrorism. However, the Council is negligent in letting states rather open slather on definition, when popular abuse of terrorism rules is traditionally evident and presently notorious, and when so numerous of its other actions are induced by the definition. Advertising and marketing and encouraging regard for human rights is a main UN function.
Council guidance has also been sorely missing on the influence of definitions on worldwide humanitarian legislation (IHL). A significant section of the controversy about defining terrorism is precisely how to differentiate it from hostilities in armed conflict ruled by IHL, which include overcome by non-state armed groups—even if ostensibly “terrorist” under counterterrorism legislation. Exclusions of many kinds are uncovered in quite a few counterterrorism conventions and regional legislation, as in the European Union. For lots of states, “war” is simply not the same as “terrorism,” even if some—but not all—tactics in war may possibly justifiably be resolved by both equally IHL and counterterrorism.
In distinction, people nationwide definitions of terrorism which criminalize all war battling by armed groups—even if they respect IHL—undermine incentives for these teams to comply with IHL and impair prospective buyers for peace settlements and post-conflict reconciliation. When the Council has abstractly urged states to comply with IHL, it has not confronted in any significant way how to appropriately address the interaction of the two legal regimes.
Worse, specified terrorism offenses straight collide with the protections for health-related and humanitarian personnel and routines below IHL, jeopardizing assistance to civilians, the wounded, and detainees. Although the Council has inspired (but not required) states to “take into account” this sort of humanitarian imperatives, it has not unequivocally subordinated too much counterterrorism legislation (these types of as in depth “material support” offenses) to IHL.
Conclusion: Legitimacy and the Council’s Security Powers
The normative black gap at the heart of the Council’s normative counterterrorism universe has not been an insurmountable obstacle to pragmatic lawmaking and cooperation given that 2001. It has nonetheless impeded maximally effective and principled counterterrorism cooperation, led to regular and comparatively unconstrained human legal rights violations, and undermined coverage and lawful interests underneath IHL in armed conflict.
Because 2001 there have been debates about the Constitution-based constitutionality of the Council’s quasi-legislative reaction to the generalized threat of any future terrorism, in contrast to its historic “policing” (not legislative) role in reaction to specific (not summary) threats. In basic principle, it is controversial that responding to terrorism as a typical group of menace, and necessitating states to legislate prospectively in response, is a defensible exercise of Charter protection powers, recognized dynamically and in light-weight of wide condition acceptance. This is true even if other bodies or procedures are without doubt improved placed to make extra genuine law than the significantly less clear, selective club that is the Council—such as participatory, transparent, negotiated, consent-centered multilateral treaty-making, via the common Standard Assembly.
There are nevertheless other fundamentally troubling concerns about the extent of this radical legal trajectory. How can the Council—credibly, and with a straight face—designate all “terrorism” as a menace to intercontinental peace and stability, and have to have lawful measures to be taken against it, with no detailing what it is? How is all domestic (as opposed to transnational) terrorism a menace to worldwide security, when its results by definition are contained solely inside a one condition? It may well be satisfactory to discover a typical class of menace, but it can hardly be a valid physical exercise of Constitution energy if that threat includes a black gap. The Council may possibly be an specialist in politics and safety, but law requires certainty and precision—or it is not law at all, just politics and arbitrariness disguised as legislation.
Ben Saul is Challis Chair of Intercontinental Legislation at the College of Sydney and Associate Fellow of Chatham Property in London. He tweets at @profbensaul.
This article is section of a collection on the part of the UN program in preventing violent extremism and countering terrorism (PVE/CT), done in collaboration with the Brian Urquhart Center for Peace Functions.
Originally Printed in the World Observatory