Introduction and Statement of the Problem
When the charter of the United Nations (UN), during its formation stage, has confirmed and the successive states including the then five super powers have agreed upon the terms that they have determined “to save succeeding generations from the scourge of war which brought untold sorrow to mankind and to reaffirm faith in fundamental human rights, in the dignity and worth in the human person the successive devastating scenario, among a number of states in the world even continuing presently, have left back a suspicion through asking whether the nations could succeed to uphold that determination or not. It is the UN which, through its organs especially the General Assembly and the Security Council, is playing such role as maintaining international security and peace through removing all kinds of threats to the peace as declared in its charter.
Terrorism, at present, has climbed its pick causing the principal threat to the peace and security in the world. The Security Council, through establishing a comprehensive counter-terrorism regime has been the principal architect of the UN’s response to terrorism. On the other hand, the General Assembly and various human rights organizations under the UN have emphasized much on human rights protection in all its operations against terrorism. To this end, the charter declares its principles that “all Members shall settle their international disputes by peaceful means….” And “all Members shall refrain in their relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” While there exists this peaceful solution, in principle, that has been agreed by the nations during its formation, the same charter contained another provision, by affirming the states to use force when feel attacked and thereby hampered their inherent rights and self determination, which does initiate a moral debate between justified and unjustified killing in the context of reaffirming or rejecting the values and rationales threatened by the first attacker.
Furthermore, the concept of strict operation in counter-terrorism has pointed toward another dual reality as Richard A. Falk concerned as the expansion of war on terror by the US government as well as its victory in Afghanistan and Iraq has reminded us the spirit of terrorism, going back to its origins in the French Revolution, is the deliberate use of violence for political ends against civilians to provoke extensive and intense fear. Claiming the term terrorism, as self-serving and opportunistic for the United States to restrict others understanding of the term, he said, is something alien that it is done unto USA, and that what they do violently unto others is legitimate counter-terrorism. Terrorism, from his viewpoint, is thus any type of political violence that lacks an adequate moral and legal justification, regardless of whether the actor is a revolutionary group or a government. In such a situation, it is the UN which could remove all these anomalies and misunderstanding about the concept terrorism and counter-terrorism as well as ensure human rights in protecting human security. The intended paper is an accumulation of the contradictory ideas as explained by various scholars in the context of United Nations counterterrorism regime and human rights protection. It also aims to look at the dimension of UN explanation of terrorism and counter-terrorism.
Though the present part will not go through historical analysis of the term terrorism, yet the analysis of other scholars will guide us to distinguish the actions to level these up as terrorism or not. If the term were a mere matter of description, establishing a definition would be simple:
“Terrorism is violence or the threat of violence calculated to create an atmosphere of fear and alarm – in a word, to terrorize – and thereby bring about some social or political change.”
The definition brings us to the earlier description as our present world recognizes both the legitimacy of war as well as the right of revolution. At the turn of the 20th century, socialist revolutionaries in Russia were proud to call themselves terrorists. They had a terrorist arm called appropriately the Terrorist Brigade, and they hoped through selective assassination to inspire terror among Russia’s ruling elite. Yasir Arafat, the leader of PLO, once told the UN that nobody is a terrorist who “stands for a just cause”. Accepting Arafat’s statement will further lead to insert the validity of causes to define the term and thereby come to an agreement that an action is terrorist action or not. Some governments are subjectively interested to label all violent acts committed by their political opponent as terrorism, while the anti government groups are frequently with the opinion that they are the victims of government terror. Thus the difficulty and debate to define the term arises that one man’s terrorist is another man’s freedom fighter. The difficulty may further increases as Richard A. Falk explained the US response to terrorism who, after being victimized by the attacks of September 11, announced war against terror and thereby won a victory against Afghanistan and proposes expanding the scope of war to a series of other countries associated with terrorism, restrict our understanding of terrorism. With such an understanding, for instance, the violence, used by Sharon government in Israel against the Palestinian people is exempted from the stigma of terrorism, and it makes sense then to condemn as terrorism only the Palestinian suicide bombing directed at Israeli civilians. Such, according to him, a one eyed definition is also politically incoherent. It overlooks the degree to which the United States has itself backed anti-state political violence, as in relation to contra opposition to the established government in Nicaragua during the 1980s and with respect to the Cuban exiles operation with thinly disguised official support from their base in Miami.
The UN, after waiting a long time for an agreement, in November 2000 came close to a general definition when it declared:
Criminal acts intended to calculated to provoke a state of terror in the general public, a group of persons or particular persons for political reasons are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be used to justify them.
But still it is unsustainable broad. Isn’t the Taliban a “group of persons” among whom we hope to provoke a state of terror? Who decides what a criminal act is? After arriving to this point we further can go to the Richard A. Falk who argues terrorism as to designate any type of political violence that lacks an adequate moral and legal justification, regardless of whether the actor is a revolutionary group or a government. However, he himself does criticize that the word adequate suggests that legal and moral judgments are unavoidably somewhat subjective and that the process of justification is necessarily grounded in the realms of private morality and partisan ideology.
These contradictory ideas have prevented to come to an ever accepted definition of terrorism.
United Nations and Terrorism
In the context of counter–terrorism, for the first time in 1972, the Assembly defined international terrorism as a general problem. The resolutions of the council in the 1970s affirmed exemption from being a terrorist of persons resisting foreign occupation and colonial or racist rule [as a consequence of the period of decolonization and the special circumstances of the Cold War where major powers still had an interest on local and regional conflicts]. Later, the 1980s resolutions introduced the issue of state terrorism and state sponsored terrorism based on increasing concerns over human rights issues, and those in the 1990s, constituted the measures to eliminate stream that focused on particular acts of terrorism as opposed to intention [in recognition that terrorism could not be excused and urgent action should be taken, and due to the overall inclination of major powers to distance themselves from particular local and regional conflicts with the end of the Cold War]. This debate over terrorist motives continues to this day, and constitutes one of the long-standing impediments in reaching consensus on a standard definition of terrorism.
This UN General Assembly’s first extensive dealing with terrorism began in 1996 with the formation of an Ad Hoc Committee on international terrorism through Resolution 51/210. This Ad Hoc Committee, since 2000, has been negotiating a Comprehensive Convention on International Terrorism. The most essential contributions of the General Assembly were the United Nations counter terrorism policy; the Global Counter Terrorism Strategy and the Universal Legal Framework against Terrorism. At present, there are 13 universal legal instruments and three amendments covering; unlawful acts aboard aircraft, unlawful seizure of aircraft, unlawful acts against the safety of civil aviation, crimes against internationally protected persons including diplomatic agents, taking of hostages, physical safety of nuclear materials, attacks against airports, attacks against the safety of maritime navigation, attacks against fixed platforms, marking of plastic explosives, terrorist bombings, financing of terrorism, and nuclear terrorism.
Soon after 9/11 the General Assembly and other UN bodies took a secondary role in the counter-terrorism regime, as terrorism became a primary threat to the maintenance of international peace and security. The Security Council did take such a position as the Charter grants it primary responsibility to deal with threats to international peace and security. The member states noted in the Assembly that the focus has shifted away from the human security toward traditional security. As a result of these sentiments the UN General Assembly and the other UN human rights organs demands more transparency, accountability and openness. The primary focus was on the listing procedure where substantive human rights violation seemed to have occurred. Because of the Council’s extensive interest was not to protect the individuals, the Assembly supported the formulation of its own version of the counter-terrorism strategy.
The impact of 9/11 has been to accelerate the pace of ratifications of most of the sectoral conventions, despite the fact that terrorism has been on the collective agenda since the 1970s. Among the important activities, in 2006, the Assembly adopted United Nations Global Counter-Terrorism Strategy which calls upon the Assembly “to review the implementation of and update the Strategy”, including through “regular interaction with the Counter-Terrorism Implementation Task Force in order to receive briefings and reports on its current and future work, assess the work being undertaken on the Strategy implementation efforts [within the UN system in general], and to offer policy guidance”
The Global Counter-Terrorism Strategy
The Global Counter-Terrorism Strategy adopted by the UN General Assembly on September 2006 claims the first time that all UN member states have agreed to a common strategic and operational framework to fight against terrorism, and serves as a joint platform to bring the efforts of the UN system-wide entities dealing with counter terrorism related issues into a common, coherent and more focused structure. Using a development based approach to address insecurity, the strategy expressed a clear demarcation between the General Assembly and the Security Council on the issue of counter-terrorism. The strategy groups the counter-terrorism measures under four main themes, which are:
- Measures to address the ‘conditions’ conducive to the spread of terrorism;
- Measures to ‘prevent and combat’ terrorism;
- Measures to build states’ ‘capacity’ to prevent and combat terrorism and to strengthen the role of the UN system in this regard; and
- Measures to ensure respect for ‘human rights’ for all and the rule of law as the fundamental basis of the fight against terrorism.
The theme 1 asserts that it is essential to address the conditions conducive to the spread of terrorism, which the assembly identified as conflict, foreign occupation, oppression, poverty, lack of economic growth, under development, lack of global prosperity, poor governance, human rights violations, political exclusion, and socio-economic marginalization. Principally, what the assembly seems to be suggesting is that conditions in states – no distinction is made between democratic and non-democratic – such as alienation and poverty help foster terrorism. Under this theme, the Department of Political Affairs (DPA) has become involved in counter-terrorism efforts through its conflict prevention mandate.
Theme 2 calls upon the member states to undertake measures to prevent and combat terrorism, with specific focus on resources and means. The strategy takes the view that what accelerates terrorism is lack of resources, inequality and economic disparity. Therefore, for the assembly, the way to address the conditions that foster terrorism is to remove what proponents of human security would call ‘want’.
Theme III calls for building state capacity to challenge, prevent and combat terrorism and strengthen the UN system’s counter-terrorism mechanisms. This theme strives to demand state compliance with the Security Council’s counter-terrorism regime, especially its resolutions such as 1373. At the same time, it underscores the importance of developing a state-based counter terrorism mechanism in states that do not currently have one. This merged with the reporting mechanism instituted under 1373, which calls on states to advice the CTC (Counter Terrorism Committee) what mechanisms they lack in the hope that others would provide equipment and assistance.
Finally, theme IV is composed of eight sections that require states to respect and abide by international human rights law, international refugee law, and international humanitarian law when combating terrorism. The aim of this theme is to call attention to the fact that the Security Council’s approach to counter terrorism insufficiently respected basic international human rights law. As states pursued security in the wake of 9/11, they increasingly derogated from key human rights mechanism. Additionally, theme IV emphasizes the role of the UNs system in this process. The key emphasis was two-fold, first recognizing a need to corresponding the state response to terrorism, while at the same time expecting to make sure that the UN is involved because of the organization’s commitment to individual rights and international human rights law.
Human Rights Issues and Counter-Terrorism
Counter-terrorism and the human rights issues have received wide-ranging attention with the establishment of High-level Panel on Threats, Challenges and Changes in 2004 by the Secretary General. The panel identified six clusters of threats: inter-state war; intra-state conflict that includes genocide and large-scale human rights violations; poverty; infectious disease and environmental damage; weapons of mass destruction; terrorism; and trans-national crime. The panel claimed that the international society through its addressing poverty not only saves millions of lives but also strengthens the states. This, they argue, will be a better defense against international terrorism and transnational crimes. It further argued that terrorism is a product of the state’s failure of not attaining the basic needs of its citizens and the perpetrators find no other better options to terrorism. It recommends five elements to address terrorism: firstly, embracing human security and ideas that address social, political and economic problems that prevent opportunities for growth and advancement; secondly, importance of education and public debate; thirdly, a stronger system of cooperation in law enforcement and intelligence-sharing in counter-terrorism; fourthly, building state capacity to prevent terrorist recruitment and operation; and fifthly, to promote the ratification of all 12 international convention against terrorism, in addition to the eight recommendations on terrorism financing. Immediately after the publication of the panel’s report the Secretary General focused its own report titled, Uniting Against Terrorism, where it emphasized, “the defense of human rights is essential to the fulfillment of all aspects of a counter-terrorism strategy.”
Furthermore, in 2005, the UN Commission on Human Rights (became the Human Rights Council in 2006) appointed a special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while countering terrorism.
Terrorism, whatever the conditions favorable for it, the reasons raised behind it, the situations argued for it; whoever in the world declares against whomever the person, the group and the state, is in all forms an evil act. To combat this deep-rooted evil with a single decision of counter attack is not thereby an effective means as argued in this paper. The reasons identified for justifying the counter attack may also be used by the perpetrators as to them these come with a reversed ideology. Therefore, counter-terrorism demands analyzing all the inclusive and exclusive elements as well as the preconditions of it separately by relating these with the whole to solve distinctively on the basis of priority to reach the ultimate goal. Though having influences by the powerful states, institutionally the UN has all the capacity; however, need to take an affirmative action to establish sustainable peace and security in the world. The regulatory demarcation between the Security Council and the General Assembly should be reanalyzed with a view to ensure a sustainable world thereby removing all kinds of terrorist threat. However, strong commitment and positive action is needed from the part of the developed and powerful states not to impose any ruthless interference on the under developed world; as well as from the part of the under developed world trying to establish democracy, rule of law, human rights in their socio-political affairs.
Isaac Kfir, A Regime in Need of Balance: The UN Counter-Terrorism Regimes of Security and Human Rights, 4 U. Miami Nat’l Security & Armed Conflict L. Rev. 7 (2014)
Charter of the United Nations and the Statute of the United Nations Court of Justice. Sanfransisco, 1945.
Andrew Hudson, “Not a Great Asset: The UN Security Council’s Counter-Terrorism Regime: Violating Human Rights”, Berkeley Journal of International Law, Vol.25, Issue 2, 2007.
James Turner Johnson, “Just War Theory: Responding Morally to Global Terrorism”, in The New Global Terrorism: Characteristics, Causes, Controls, ed. Charles W. Kegley, Jr. (New Jersey: Prentice Hall, 2003): 223-225.
Brian M. Jenkins, “International Terrorism: The Other World War”, in The New Global Terrorism: Characteristics, Causes, Controls, ed. Charles W. Kegley, Jr. (New Jersey: Prentice Hall, 2003):16.
Richard A. Falk, “A Dual Reality: Terrorism Against the State and Terrorism by the State”, in The New Global Terrorism: Characteristics, Causes, Controls, ed. Charles W. Kegley, Jr. (New Jersey: Prentice Hall, 2003):53
Timothy Garton Ash, “Is There a Good Terrorist?”, in The New Global Terrorism: Characteristics, Causes, Controls, ed. Charles W. Kegley, Jr. (New Jersey: Prentice Hall, 2003):
Arvinder Sambei, et. Al., “Counter-Terrorism Law and Practice: An International Handbook, 2009:25
Sabbir Hasan is student of Master’s in International Security in Police Academy, Ankara, Turkey.