Chapter 4 Global and regional initiatives to combat terror.
The use of terror is as old as humankind itself. As indicated in the previous sections, the salience of terrorism--also as a threat to global security--has increased since the ending of the Cold War, more specifically since the events of September 11. In this respect a link, albeit tenuous, is made between contemporary international terrorism and the phenomenon of globalisation, evidenced by the fact that "the technologies associated with globalization have enabled terrorist groups to conduct operations more deadlier, more distributed, and more difficult to combat than those of their predecessors". (1)) For instance, al-Qaeda is the first example of an armed non-state network with global reach and sophisticated capacity, whereas the threat that terrorists can cause mass casualties, creates unprecedented dangers. (2))
This predicament is complicated by the fact that terrorism has developed from a regional into a global phenomenon--transcending its traditional sub-national confines to become more transnational and international in nature and scope--in the process also increasing in threat severity. In addition, the use of terrorism as a strategy or tactic, its variations--also as a form of warfare, as well as its multiple explanations and justifications, merely add to its complexity. These developments, attributed amongst others to globalisation, have also made counter-terrorism more difficult. Paradoxically, it is also argued that the "same systems and processes that terrorists can exploit can be harnessed to defeat terrorism by those governments with the will and resources to combat it". (3))
Combating terrorism in an assertive and constructive manner, especially collectively, is of recent origin. Combating sub-national or domestic terrorism--in both non-colonial and colonial settings--has mostly been and still remains the unilateral prerogative of individual incumbent governments. Multilateral co-operation to combat transnational and international terrorism in particular, although pre-dating the end of the Cold War, is a more recent phenomenon that has gained impetus on account of the 'war on terror' by the 'coalition of the willing'. In this respect the world has seen the emergence of what is arguably a global counter-terrorism regime, that fosters norm-guided and rule-governed procedures and activities to combat terror in the international system. Various global and regional initiatives, in which key international and regional intergovernmental organisations are instrumental, characterise this developing counter-terrorism regime.
2. UNDERLYING PRINCIPLES, NORMS AND RULES
Insurgency and terrorism, and therefore also counter-insurgency and counter-terrorism--being logical correlates of one another--inevitably involve the coercive use of armed force. These actions are therefore subject to international principles and norms concerning the use of force, as well as to the rules of international law, more specifically the laws of war and treaty provisions on terrorism. (4)) What exactly is at issue and what are the moral and legal frameworks that apply in this respect? Theoretically, the use of insurgency and terror and also efforts to counter insurgency and terror are inextricably linked to contending perspectives on the use of armed force or, more specifically, the issue of the justifiability of war. (5)) As a point of departure, although not the main focus of this discussion, comment is required on the justification of war. The just war doctrine (bellum justum) comes into effect in terms of the right to use armed force or to make war (jus ad bellum) based on just cause, just intention, and legitimate authority; and more specifically in terms of non-deviant or just conduct in war (jus in bello), as prescribed by the law of war and related international agreements, conventions and protocols. (6)) The latter has a bearing, amongst others, on rules regarding weapons, rules regarding method and humanitarian rules. (7))
The rules regarding weapons concern the regulation and use of weapons in war for purposes of armed coercion. Of importance is denying belligerents the use of unacceptable weapons which cause unnecessary suffering or denying them the use of acceptable weapons in an unacceptable manner. The rules regarding methods concern the question of targeting in war or purposes of armed coercion. The general principle is that only military targets may be attacked, whereas civilian targets and civilians (unless proved to be combatants) are immune from attack. Humanitarian rules comprise negative restraint provisions as well as positive measures demanding specific ethical action of belligerents such as the treatment of civilians, the treatment of the wounded, and the protection of certain groups such as women, children, prisoners-of-war and detainees. It is important to note, also to the extent that the doctrine applies (or may apply) to non-state actors who extend the notion of just war to intra-state armed conflict, national liberation wars or religious wars, that the justified right to make war or use armed force (jus ad bellum) cannot be invoked without its correlate, namely just conduct in war (jus in bello).
In the case of insurgency, either in response to foreign military occupation or a colonial situation involving the principle of self-determination, it should be noted that the international character of (purported) wars of national liberation has gained formal recognition as international armed conflict. In terms of Art 1(4) of Protocol I Additional to the Geneva Conventions, 1977, supplementary to the Geneva Conventions, 1949, situations of international conflict and occupation were extended to include "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination". This, however, is open to interpretation. The more expansive view is that this extension legally endorses the notion that liberation wars are indeed international wars. (8)) The more limited interpretation is that Protocol I does not explicitly grant liberation wars an international character but, as an enabling measure, equates them with and accords them the same status as international wars or other armed conflict between states for the purpose of applying Protocol I to these conflict situations. (9)) Protocol I, however, does not adequately address the problem of terrorism as such. (10))
This does not mean that any self-proclaimed group of 'freedom fighters' or 'insurgents' can invoke the law of war to their advantage, since it only applies to internationally recognised movements (for instance, recognised by the UN). Also, the parties in a national liberation war cannot become contracting parties to the Geneva Conventions or the Protocols, but can submit a unilateral declaration to the effect that they undertake to apply the said treaties, should the state against which war is being waged, be a contracting party itself. In this case, national liberation movements will for purposes of applying the laws of war, be on the same footing as states. What is the implication of this? The morality, legality and legitimacy of the actions of national liberation movements are not a function of self-justification, self-proclamation and an unqualified appeal to the just war doctrine. On the one hand, the legitimacy of their status and the legality of their activities are dependent on their compliance with the rules or laws of war. On the other hand, 'freedom fighters' or 'insurgents' involved in irregular warfare--like all other international actors--are subject to the moral imperatives of internationally accepted principles and norms concerning the use of armed force.
The broader textural context in which the aforesaid becomes relevant in respect of the use of terror and efforts to combat terror, pertains to the general purposes and principles enshrined in the Charter of the United Nations (hereinafter the UN Charter). More specifically, in order to maintain international peace and security, to develop friendly relations among nations, to achieve international co-operation in solving international problems and to harmonise the actions of nations (Art 1), states in particular but by extension also non-state actors, are morally obliged and has the dual responsibility to settle disputes by peaceful means and to refrain from the threat or use of force (Art 2(3) and (4)). It goes without saying that these endeavours should in no way violate human rights or compromise fundamental freedoms (Art 1(1) and (2)). This does not exclude the use of armed force under well-defined circumstances, namely in individual or collective self-defence (Art 51); as a collective measure under United Nations (UN) Security Council auspices with regards to threats to the peace, breaches of the peace and acts of aggression (Chapter VII); and if authorised by a competent UN organ (for example, the General Assembly through its Uniting for Peace Resolution adopted on November 3, 1950).
These moral imperatives and positive duties to settle disputes in a peaceful manner, to refrain from aggression and acts of aggression, to constrain the use of force, and to regulate conduct in war, date back to, amongst others, the Hague Conventions of 1899 and 1907. Since 1945 these prescriptions have been codified in a stronger set of norms and laws, most notably in the Charter of the United Nations, the Geneva Conventions and Protocols, the Rome Statute for the International Criminal Court and international customary law. (11)) Based on justifications invoking order, utilitarian grounds, contractarian (consent-based) rights and human rights, these imperatives and duties culminate in "the assumption that war requires a special justification in a way that peaceful relations do not, thus indicating that peace is regarded as a settled norm". (12))
The gist of the argument is that as a response to the use of terror--which by its very nature is immoral and illegal--global and regional initiatives to combat terror are part of a more inclusive and comprehensive approach to order and justice in world politics; an approach to peace that has an established and legitimate foundation in the principles, norms and rules of 'good international conduct' or non-deviant behaviour. Therefore, the initiatives to combat terror are not sectoral responses to terrorism as a very specific phenomenon or threat to security, but rather originate from and form part of the pursuit of global peace and security within a more inclusive moral and legal framework.
3. THE UNITED NATIONS AND GLOBAL INITIATIVES TO COMBAT TERROR
Emanating from the aforesaid, the UN (or more correctly the UN system at large) has assumed the primary responsibility at the global level to combat terror and terrorism. Again, as previously alluded to, this is not merely on account of the intrinsic security threat that terrorism poses, but more importantly on account of the fact that terrorism "attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict." (13)) In response, the UN has adopted a pro-active approach to counter terrorism and combat terror, in the sense of meeting the challenge of prevention, rather than opting for a reactive, ex post facto approach.
3.1 Preventing terrorism
The UN has adopted a three-pronged preventive approach, based on what can be termed the 'three pillars' of counter-terrorism, namely a comprehensive strategy; better counter-terrorism instruments; and assisting states in confronting terrorism. (14))
(a) A comprehensive strategy: Based on the assumption that terrorism corrodes the fundamental values that lie at the heart of the UN Charter, more specifically human rights and the rule of law, it is contended that an approach to terror that focuses entirely on security measures (military, police and intelligence measures) risks undermining the very same values it purports to uphold and protect. Hence collaborative efforts and the potential for collective action are weakened, especially since large parts of the world's population are alienated. As an alternative a more comprehensive strategy--that still incorporates but extends beyond security measures of a coercive nature--is proposed that recognises the rule of law and human rights; that strengthens responsible states and promotes good governance; and that addresses the underlying causes of terrorism. This, it is believed, will enhance both the political will and capacity of states (and other international actors) to fight terror.
This comprehensive strategy--headed by the UN Secretary-General--is based on the following elements, namely to defend human rights in the struggle against terrorism; to dissuade disaffected groups from embracing terrorism as a tactic by reversing the causes or facilitators of terrorism and by countering extremism and intolerance through education and a public dialogue; to deny groups or individuals the means to carry out acts of terrorism by developing better instruments for global counter-terrorism; to deter states from supporting terrorist groups, either in accordance with international conventions and non-legal behavioural norms, or through the threat of sanctions; and to develop state capacity to prevent terrorism. (15)) This strategy is supplemented by broad-based multilateral co-ordination and co-operation, not only within the UN system where there are overlaps and duplications of effort, but especially amongst regional and sub-regional organisations.
(b) Better counter-terrorism instruments: The point of departure of this objective is to encourage states to accede and subscribe to the international conventions against terrorism. Collectively these anti-terrorist conventions not only provide the normative framework and legal basis for counter-terrorism, but make provision for internal enforcement measures and transnational co-operation (for example measures against terrorist financing). In addition, the Security Council plays an important role in strengthening state resistance to and weakening state support for terrorism. This ranges from applying sanctions--from 1992 onwards--against individuals and states who support terrorism, to imposing uniform, mandatory counter-terrorist obligations on all states and establishing a Counter-Terrorism Committee (CMT) to monitor compliance and facilitate the provision of technical assistance to states (in accordance with Security Council Resolution 1373 (2001)).
(c) Assisting states in confronting terrorism: The underlying argument is that non-compliance with counter-terrorist obligations is more the result of a lack of capacity, than a matter of a lack of commitment or insufficient political will. The UN assistance to states confronting terrorism is, however, limited to technical and not operational support. If an individual state cannot develop its own domestic counter-terrorism capacity, the alternative is bilateral assistance. This assistance could be facilitated by the Counter-Terrorism Executive Directorate (CTED) if its authority is extended by the Security Council to serve as a 'clearing house' for inter-state assistance to develop domestic counter-terrorism capacities. Obviously non-compliance to counter-terrorist obligations by states that do have the capacity to undertake them, is more problematic. Such an eventuality would require additional measures, such as a predetermined set of sanctions, to ensure compliance.
3.2 Prohibiting terrorism
International law on terrorism and on the prohibition of terrorism and terrorist acts is framed by and based on a series of multilateral treaties and UN declarations on terrorism.
3.2.1 Multilateral treaties on terrorism
The proliferation of multilateral treaties on terrorism, which had a predecessor in the League of Nations Convention for the Prevention and Punishment of Terrorism, 1937 when terrorism first appeared on the international agenda, (16)) is to large extent a response to the occurrence of international terrorism and particular types of terrorist acts at specific times in history. As a result these legal instruments (13 in all) do not focus on the more wide-ranging phenomenon of international terrorism as such, but prohibit specific forms of terrorism and related activities. A distinction is made between UN conventions (deposited with the Secretary-General) and other supplementary multilateral conventions and protocols (deposited with other depositories such as specialised agencies of the UN or the governments of a group of states). (17))
(a) Multilateral treaties deposited with the Secretary-General
-- Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973 (New York): This Convention applies to the crimes of direct involvement or complicity in the murder, kidnapping, or attack, whether actual, attempted or threatened, on the person, official premises, private accommodation or means of transport of diplomatic agents and other 'internationally protected persons' such as heads of state and government, ministers of foreign affairs, state officials and representatives of international organisations entitled to special protection in a foreign state, and their families.
-- International Convention against the Taking of Hostages, 17 December 1979 (New York): This Convention applies to the offence of direct involvement or complicity in the seizure or detention of, and threat to kill, injure or continue to detain a hostage, whether actual or attempted, in order to compel a state, an intergovernmental organisation, a person or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage. States party to the Convention are obligated take all measures considered appropriate to ease the situation of hostages and to secure their release.
-- International Convention for the Suppression of Terrorist Bombings, 15 December 1997 (New York): This Convention applies to the offence of the intentional and unlawful delivery, placement, discharge or detonation of an explosive or other lethal device, whether attempted or actual, in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility, with the intent to cause death or serious bodily injury, or extensive destruction resulting in major economic loss.
-- International Convention for the Suppression of the Financing of Terrorism, 9 December 1999 (New York): This Convention applies to the offence of direct involvement or complicity in the international and unlawful provision or collection of funds, whether attempted or actual, with the intention or knowledge that any part of the funds may be used to carry out terrorist offences. (18))
-- International Convention for the Suppression of Acts of Nuclear Terrorism, 14 September 2005 (New York): This Convention, being the most recent treaty event, deems it an offence if any person unlawfully possesses or uses radioactive material, or possesses or uses a device, or uses or damages a nuclear facility with the intention to cause death or serious bodily injury, to cause substantial damage to property or to the environment, or to compel an international actor to do or to refrain from doing an act. This Convention excludes activities of armed forces during an armed conflict, and does not address the issue of the legality of the use or threat of use of nuclear weapons by states.
In respect of the aforesaid, states party to these conventions have the obligation to establish their jurisdiction over the offences and offenders and to make them punishable, also considering that these offences are deemed extraditable offences.
(b) Multilateral treaties deposited with other depositories
-- Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September 1963 (Tokyo): This Convention (known as the Tokyo Convention) applies to offences and other acts prejudicial to good order and discipline on board an aircraft, excluding state aircraft (military, customs or police), committed while the aircraft is in flight on the surface of the high seas or of any other area outside the territory of the state.
-- Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970 (The Hague): This Convention (known as The Hague Convention) defines the act of the unlawful seizure of aircraft.
-- Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971 (Montreal): This Convention deals with acts other than those covered by the Tokyo Convention and The Hague Convention, and defines a wide spectrum of unlawful acts against the safety of civil aviation.
-- Convention on the Physical Protection of Nuclear Material, 3 March 1980 (Vienna): The objectives of this Convention are to establish levels of physical protection required to be applied to nuclear material used for peaceful purposes while in international nuclear transport, and to provide for measures against unlawful acts with respect to such material while in international transport as well as in domestic use, storage and transport.
-- Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 24 February 1988 (Montreal): This Convention adds to the definition of 'offence' given in the Montreal Convention of 1971, unlawful and intentional acts of violence against persons at an airport serving international civil aviation which cause or are likely to cause serious injury or death and such acts which destroy or seriously damage facilities, thereby endangering safety at the airport.
-- Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988 (Rome): This Convention (known as the Rome Convention) applies to the offences of direct involvement or complicity in the intentional and unlawful endangerment of the safe navigation of a ship (excluding warships or state operated ship for customs or police purposes) by the commission of specified acts. The Convention applies to ships navigating or scheduled to navigate into, through or from waters beyond the limit of the territorial sea of a single state, or the lateral limits of its territorial sea with adjacent states, or when the alleged offender is found in the territory of a state party to the Convention.
-- Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, 10 March 1988 (Rome): This Protocol applies offences described in the Rome Convention of 1988 on the safety of maritime navigation, to a 'fixed platform' on the continental shelf used for the purpose of exploration or exploitation of resources or for other economic purposes.
-- Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1 March 1991 (Montreal): This Convention requires each state party to prohibit and prevent the manufacture in its territory of unmarked plastic explosives, and the movement thereof into or out of its territory. Provision is also made for the destruction or consumption of stocks of plastic explosives not held for police or military functions, or to mark or render these stocks permanently ineffective. The Convention also establishes an International Explosives Technical Committee to evaluate technical developments relating to the manufacture, marking and detection of explosives.
In respect of the aforesaid, states party to the conventions or, where applicable, the states of registration of aircraft have the obligation to establish and exercise their jurisdiction over such offences and to make them punishable by severe penalties. The conventions also contain specific rules on jurisdiction and extradition.
3.2.2 United Nations declarations on terrorism
Although the aforementioned multilateral treaties provide a normative and a legal foundation and framework for combating terror, they are sector specific. As a result, they neither adequately address nor comprehensively deal with the definition and phenomenon of terrorism as a threat to global security. Without detracting from their importance, these multilateral treaties do not constitute the core of current global counter-terrorism initiatives. The latter are to be found in a series of UN declarations on terrorism, supported and supplemented by a large number of related Security Council and General Assembly resolutions.
(a) General Assembly declarations: The General Assembly has over the years passed various declarations that either directly or indirectly dealt with, constrained and prohibited the use of armed force for aggressive or coercive purposes. These include, amongst others, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 1970 (Resolution 2625 (XXV) annex); the Declaration on the Strengthening of International Security, 1970 (Resolution 2734 (XXV)); the Definition of Aggression, 1974 (Resolution 3314 (XXIX) annex); and the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, 1987 (Resolution 42/22 annex).
Although the General Assembly cannot take binding decisions but only discuss issues and make recommendations, these declarations have a dual impact. Firstly, being supported by the majority of states in world politics, these declarations place a moral obligation on the members of the international community to adhere to what has been recommended in good faith, and they therefore provide an imperative of non-deviant behaviour or international 'good conduct'. Secondly, within the context of counter-terrorism initiatives, these declarations also form part of the larger body of principles and rules that serves as a moral impediment to the threat or use of force for aggressive or coercive purposes. As such they not only provide a basis for, but also supplement resolutions on terrorism.
In response to the world-wide persistence of acts of international terrorism in all its forms and manifestations, the General Assembly passed Resolution 49/60 (annex) on 9 December 1994, through which it adopted the Declaration on Measures to Eliminate International Terrorism. This was followed by Resolution 51/210 (annex) on 17 December 1996, through which it adopted the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism. Although extremely wide-ranging in nature and scope, these declarations in essence contained the following:
-- An unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, also considering that these activities constitute a grave violation of the principles and purposes of the UN.
-- A rejection of any justification of criminal acts to provoke a state of terror for political purposes, irrespective of the political, philosophical, ideological, racial, ethnic, religious or other basis thereof.
-- States are to refrain from any direct or indirect involvement in and moral or material support of terrorist acts.
-- States are to fulfil their international obligations with respect to combating international terrorism, in particular to refrain from supporting terrorist activities in any manner; to ensure the exercise of jurisdiction over perpetrators of terrorist acts in order to prosecute or extradite them; to conclude bilateral, regional and multilateral agreements to this effect; to co-operate in exchanging relevant information concerning the prevention and combating of terrorism; to implement international conventions on terrorism to which they are party; and to ensure that asylum seekers do not engage in terrorist activities or that refugees do not support terrorist activities in any manner.
-- States are encouraged, when applying extradition agreements, not to regard offences connected with terrorism to be political offences excluded from the agreements.
-- States are encouraged even in the absence of a treaty, to consider facilitating the extradition of persons suspected of having committed terrorist acts.
-- States are to co-operate in counter-terrorism initiatives, especially in respect of the exchange of information and the implementation of international conventions.
-- States are to review the existing legal provisions concerning terrorism in order to develop a comprehensive legal framework covering all aspects of the matter.
-- States not party to international conventions relating to terrorism should be urged to become parties to the conventions.
-- The United Nations system, all other intergovernmental organisations and other relevant bodies should make every effort possible to promote measures to combat and eliminate terrorism.
(b) Security Council declarations: The Security Council has the vested authority to make binding decisions if acting under Chapter VII of the UN Charter (concerning collective action with respect to threats to the peace, breaches of the peace and acts of aggression). It can also make recommendations on issues that have a moral authority similar to the declarations passed by the General Assembly. Although the Security Council has passed a large number of resolutions over the years condemning specific acts of terror that were perpetrated in various parts of the world (dating back to the 1960s), it has only after the events of September 11 passed two declarations on terrorism. Meeting at a level of ministers of foreign affairs, these are pursuant of Resolution 1377 (2001) of 12 November 2001, the Declaration on the Global Effort to Combat Terrorism; and pursuant of Resolution 1456 (2003) of 20 January 2003, the Declaration on the Issue of Combating Terrorism. The 2001 Declaration, by recognising the fact that international terrorism constitutes one of the most serious threats to international peace and security in the 21st century and that it is contrary to the principles and purposes of the UN, essentially calls on all states to co-operate within the UN framework and mechanisms, and to intensify their efforts to eliminate international terrorism. The 2003 Declaration is more comprehensive in scope and essentially covers the nature of the security threat posed by terrorism, steps to be taken to counter terrorism, and additional aspects.
-- Concerning the nature and scope of terrorism, it is reaffirmed that terrorism constitutes one of the most serious threats to peace and security; that acts of terrorism are criminal and unjustifiable, regard-less of their motivation; that there is a growing danger of terrorist access to and use of materials that constitute weapons of mass destruction; that in a globalising world terrorists exploit sophisticated technology, communications and resources; that the financing and funding of terrorism is a matter of concern; that terrorism is linked to other criminal activities; that terrorists and their supporters exploit instability and intolerance to justify their criminal acts; and that terrorism can only be defeated by a sustained comprehensive approach involving all states, international and regional organisations, and efforts at the national level.
-- The steps to be taken to counter terrorism mainly involve full compliance with all relevant Security Council resolutions on terrorism; compliance with all relevant international conventions and protocols relating to terrorism; the need for international co-operation and assistance in counter-terrorism activities; the implementation of all aspects of Resolution 1374 (2001)--forthwith to be discussed; compliance of counter-terrorism measures with the obligations under international law, particularly those pertaining to human rights, refugees and humanitarian concerns; and the involvement of regional and subregional organisations.
-- Additional matters include international efforts to enhance dialogue and broaden the understanding among civilisations; (19)) to address unresolved regional conflicts and the full range of global issues; and to resolve any other outstanding issues of the proposed comprehensive convention on international terrorism, currently being drafted.
3.3 Countering terrorism
Whereas the international conventions and protocols provide a legal framework for combating terrorism and whereas the declarations of the General Assembly and the Security Council articulate the contextual, aspirational and intentional dimensions of counter-terrorism initiatives, the actual concrete steps to counter international terrorism are to be found in various resolutions of the Security Council and the General Assembly. For example, since 1990 the Security Council has passed more than 30 resolutions that specifically dealt with terrorism, that were an immediate response to acts of terrorism perpetrated in particular parts of the world, or that were in some way related to terrorist activities. The majority of these resolutions, more than 20 in fact, were passed since 2000. To this a similar number of General Assembly resolutions can be added.
The most important of these were Security Council Resolution 1368 (2001) of 12 September 2001 which legitimised the unilateral use of force in response to terrorist acts (and used by the United States--US as a 'blank cheque' to justify its actions against al-Qaeda and the Taliban); (20)) and Resolution 1373 (2001) of 28 September 2001, complemented by subsequent resolutions and ministerial declarations. The latter was a landmark resolution in the fight against terrorism and framed a broad anti-terrorism mandate for the international community; created formal obligations to all UN member states; established the institutional infrastructure to monitor progress and assist states to meet their obligations in countering terrorism; and also established a close link between counter-terrorism initiatives and other priorities of the UN. (21))
Through Resolution 1373 (2001) the Security Council--acting under Chapter VII of the UN Charter concerning threats to international peace and security, and in response to the events of September 11--reaffirmed its viewpoint that terrorism is contrary to the principles and purposes of the UN; that terrorist acts constitute a threat to international peace and security; that terrorism is to be unequivocally condemned; and that it is determined to prevent all such acts. Accordingly the Security Council decided that all states shall meet specific obligations and collaborate in various ways on specific issues to counter terrorism. More importantly, this resolution (in accordance with point 6) established the Counter-Terrorism Committee (CTC) as a committee of the Security Council, consisting of all the members of the Council, to motivate and monitor the implementation of Resolution 1373 (2001) with the assistance of appropriate expertise, and to facilitate technical assistance to member states who lack the capacity to comply with counter-terrorism obligations. In addition, states were also called upon to report to the CTC on the steps they had taken to implement the resolution.
Since the Security Council acted under Chapter VII of the UN Charter in passing Resolution 1373 (2001), it formally imposes binding obligations on all member states, with the aim of combating terrorism in all its forms and manifestations. (22)) These binding obligations require member states, amongst others, to criminalise, freeze and deny all forms of financial support for terrorist groups; suppress the provision of safe haven, sustenance or support for terrorist groups; share information with other governments on any groups practicing or planning terrorist acts; co-operate with other governments in the investigation, detection, arrest, extradition and prosecution of those involved in terrorist acts; criminalise active and passive resistance for terrorism in domestic laws and to prosecute the violators of these laws; and to become party to the relevant international conventions and protocols relating to terrorism.
Based on Resolution 1373 (2001) the CTC has become the main instrument of the UN action against terrorism and has gathered the world's largest body of information on the counter-terrorism capacity of states. (23)) The 15-member CTC has a revolving chairman and three subcommittees chaired respectively by the CTC's three vice-chairmen. (24)) Pursuant to the resolution, as an ongoing process, all states have to report to the CTC on steps taken or planned to implement it. These reports are reviewed and analysed by one of the Sub-Committees, with the assistance of independent Expert Advisers, (25)) who then communicates feedback and further requirements to the states.
In order to enable states to take effective action in their respective priority areas, the CTC instituted three stages of analysis, namely: Stage A--to determine whether a state has in place effective counter-terrorism legislation in all areas of activity, especially in combating terrorist financing; Stage B--to see to it that states, in accordance within their responsibilities and sovereign jurisdiction, strengthen their executive infrastructure (26)) and fully implement the resolution; and Stage C--to address inter-state co-operation (once the legislative measures and executive machinery are in place), which requires distinguishing between states that fully comply with the resolution and those who do not, in order to give priority attention to the latter and also to cover the remaining areas of the resolution. (27)) On its part, the CTC also regularly reports its progress and challenges to the Security Council.
Following a report (28)) on problems encountered in the implementation of Resolution 1373 (2001) and in order to develop a more proactive dialogue with member states, a 'revitalisation' of the CTC was initiated in 2004. (29)) Subsequently, the Security Council with the adoption on 26 March 2004 of Resolution 1535 (2004) endorsed the 'revitalisation' of the CTC and established a Counter-Terrorism Committee Executive Directorate (CTED), headed by an Executive Director, to reinforce the CTC's ability to monitor the implementation of Resolution 1373 (2001), to enhance international collaboration and to further state capacity-building. The CTED specifically is working to strengthen co-ordination and collaboration among governments and national, regional and international bodies, and to help the CTC broker technical assistance for those member states who have insufficient capacity to meet their obligations. (30))
3.4 Mobilising support
Apart from the counter-terrorism initiatives and activities of the Security Council and the CTC/CTED, the UN also operates a wide range of counter-terrorism programmes through its departments, offices and agencies. The General Assembly, in accordance with Resolution 51/210 of 17 December 1996, established the Ad Hoc Committee on Terrorism to formulate conventions on terrorism (amongst others, the draft of the Comprehensive Convention against International Terrorism). The Secretary-General also established the United Nations Policy Working Group on Terrorism in October 2001 to identify the implications and broad policy dimensions of terrorism for the organisation. Several specialised UN bodies and agencies are also specifically involved in counter-terrorism programmes, most notably the United Nations Office for Drug Control and Crime Prevention (UNODC), whose Centre for International Crime Prevention has a Terrorism Prevention Branch; the International Atomic Energy Agency (IAEA); and the International Civil Aviation Organization (ICAO).
In addition, most of the UN's specialised agencies (for example the International Maritime Organization--IMO), funds (for example the United Nations Children's Fund--UNICEF) and programmes (for example the United Nations Development Programme--UNDP) are also involved in residual activities, as are various UN departments (for example the UN Department for Disarmament Affairs, the UN Department of Safety and Security, the UN Department on Political Affairs, and the UN Office of Legal Affairs). The CTC, together with two other committees of the Security Council form its three 'anti-terrorism' committees. These two other committees are the Committee established pursuant to Resolution 1267 (1999) concerning al-Qaeda and Taliban sanctions, and the Committee established pursuant to Resolution 1540 (2004) to combat the proliferation of weapons of mass destruction. (31)) Of greater significance is the success the UN has had in involving more than 50 other international, regional and sub-regional organisations and partner bodies, representative of all the continents and regions of the world, in their counter-terrorism programmes. Amongst these are some of the world's most influential organisations, including international financial institutions, law associations and police organisations. (32))
3.5 Progress and problems
First of all, the most significant progress made by the UN (and the UN system at large) was to develop a comprehensive global counter-terrorism strategy, and to mobilise global support for and involvement in its counter-terrorism initiatives. In the process the UN unequivocally condemned and criminalised all acts, methods and practices of terrorism and deemed them to be a grave violation of the principles and purposes of the UN Charter, and also established a compelling moral and legal framework to counter terrorism, based on a series of international treaties, conventions and declarations, and a succession of resolutions.
At a more practical level and in more concrete terms--working primarily through the Security Council and the CTC/CTED--the UN succeeded in developing better counter-terrorism instruments and providing assistance to states in confronting terrorism. The most notable success of the CTE/CTED was to ensure that all 191 UN member states submit first-round reports on their efforts to comply with Resolution 1373 (2001). Subsequently, member states responded to requests for further information and submitted additional reports articulating concrete action they had undertaken. There has also been a noticeable increase in the ratification of counter-terrorism conventions. The 'revitalisation' of the CTC has also resulted in the establishment of the CTED. (33)) In conclusion, it is evident that the UN has been instrumental in the development of the international counter-terrorism regime.
The UN efforts are, however, not without problems. At an operational level the following problems have been identified, namely divergent views on the exact nature of the threat of 'state sponsors' of terrorism, also considering that different deviant states require different policy approaches; establishing who has the authority to determine violations of Resolution 1373 (2001); the long-term implications of Security Council actions (or endorsed actions) with respect to the use of force; difficulties implementing UN counter-terrorism measures; the complexity of counter-terrorism measures which are furthermore complicated by more international organisations becoming involved in the fight against terrorism; and the fact that the fight against terrorism is a long-term campaign that is also directed at the underlying conditions that cause people to embrace terrorism. (34))
At the higher strategic level problems are also being experienced. Here it has to be borne in mind that the objectives of depriving terrorist groups the means to commit their crimes and of addressing the root causes of alienation and despair that spawn terrorism, lie at the core of the UN counter-terrorism strategy. At this level the main problems are the following:
Firstly, since terrorism is not a single but a multidimensional phenomena involving complex normative, political and legal issues, the counter-terrorism strategy hinges on a universally accepted and uncontested definition of terrorism. This 'definition problem'--considering that UN member-states have been unable to agree on a single, unequivocal definition of terrorism (and therefore also on a comprehensive anti-terrorism convention)--relates, on the one hand, to the argument that any definition should include state terrorism (the state's use of violence against civilians). Even with this inclusion, it has nevertheless to be conceded that the existing legal and normative framework against state violations is much stronger than against non-state violations and that the real problem is that the norms governing the use of force by non-state actors have not kept pace with those pertaining to the state. On the other hand, there is the perennial issue of the right to resistance of peoples under foreign military occupation (and linked to this, wars of national liberation), although this can never justify the targeting and killing of civilians. (35)) Hence the proposed UN description of terrorism as "any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians and non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act". (36))
Secondly, there are the difficulties of states in implementing Resolution 1373 (2001). This specifically relates to problems or inabilities concerning the operational prevention and suppression of the financing of terrorism; the competence of courts; the ratification of international conventions and protocols without having enforcement measures in place; the links between terrorism and organised crime; and the links between terrorism and illegal movement of nuclear, chemical, biological and other potentially deadly materials. These difficulties obviously have a direct bearing on the technical assistance provided by the CTC/CTED in support of state capacity-building. (37)) The main problem is that although there is a considerable degree of compliance with the resolution--with less than 10 per cent of the states 'inactive'--the largest group of member states were 'willing but unable' to initiate and sustain effective counter-terrorism efforts. This inability is attributed to the detrimental socio-economic conditions and internal conflict prevalent in most of these countries. (38)) Noncompliance is therefore an issue of lack of capacity, rather than a lack of commitment and political will.
Thirdly, being more than mere criminality, terrorism in most cases is a political act for political and ideological (secular or religious) purposes. Understanding the politics and psychology of terrorism is as important as understanding its criminality. (39)) Therefore, it is imperative to acknowledge the causal link between terrorism and the multi-dimensional environment that produces it, and also the need for the structural prevention of terrorism through development. (40)) Counter-terrorism not only involves the 'high politics' of security and policing, but also the 'low politics' that cuts to the core of the so-called 'development imperative'. In fact, when it comes to terrorism, it is virtually impossible to distinguish between 'high and low politics'. The problem is that, on a narrow front, the emphasis of counter-terrorism is mainly on terrorist activities, that is conducting a reactive 'war on terror' using a denial strategy. As such--or so it appears--less emphasis is placed on a proactive approach that addresses the more wide-ranging socio-economic and political conditions that are conducive to terrorism. In defence of the UN, it must be said that the organisation does recognise and emphasise this causal link between the phenomenon of terrorism and the broader structural context from which it originates. This is evidenced, amongst others, by the Security Council Declaration on the Issue of Combating Terrorism, 2003 which clearly "emphasizes that continuing international efforts to enhance dialogue and broaden the understanding among civilizations, in an effort to prevent the indiscriminate targeting of different religions and cultures, to further strengthen the campaign against terrorism, and to address unresolved regional conflict and the full range of global issues, including development issues, will contribute to international cooperation and collaboration, which by themselves are necessary to sustain the broadest possible fight against terrorism". (41)) Bearing the nature and scope of the 'development imperative' in mind, it is obvious that even after 60 years the UN remains seized by it. Therefore, this challenge is addressed by the UN Millennium Project to achieve the Millennium Development Goals, and it also lies at the heart of the UN's pursuit of 'larger freedom'. (42))
In the fourth place, as a major concern, there is the problem that in countering terrorism and more specifically in conducting the so-called 'war on terror', many countries are violating human rights standards as well as refugee and international law. This, amongst others, relate to the conditions of detention and right to fair hearings of detainees; allegations of torture and other cruel, inhuman or degrading treatment or punishment; the ill-treatment and persecution of human rights defenders; violence against women; religious intolerance and persecution; infringements on judicial independence; and the destructive effect terrorism, and in certain instances also counter-terrorism, has on human rights. (43)) In general, concern is expressed over the serious impact of counter-terrorism measures on the enjoyment of human rights and fundamental freedoms. The UN, throughout its history of countering terrorism, is on record that counter-terrorism should in no way compromise or violate human rights, fundamental freedoms and refugee and international law, and that human rights treaty bodies should pay close attention to the issue of human rights and counter-terrorism within their mandates and resources. (44)) In this respect the UN Secretary-General, Kofi Annan, is also on record of categorically stating: "We should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. On the contrary, I believe that, in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism". (45))
Finally, there remains tension between action and international legal norms. The 'war on terror' in particular has raised three issues that impact on international initiatives to combat terror. These are whether the circumstances in which it is permissible for states to take military action, especially of a preventive and pre-emptive nature, have expanded; whether the treatment of prisoners and detainees suspected of involvement in terrorism is governed by the laws of war, human rights law and the basic laws of democratic states, or whether the departures from these regimes are permissible; and whether the major international legal institutions are able to deal with the challenges posed by international terrorism and the 'war on terror'. (46))
4. REGIONAL INITIATIVES TO COMBAT TERROR
It was previously pointed out that co-operation and collaboration with regional and sub-regional organisations not only form a cornerstone of the UN's counter-terrorism strategy, but that the majority of the world's most noted regional organisations have in some way or another developed a counter-terrorism strategy and launched a variety of counter-terrorism initiatives. Apart from the fact that these initiatives are ancillary to those of the UN, they are also based on the UN Charter provisions. They are, more specifically, based on the provisions that nothing in the UN Charter "shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member ... until the Security Council has taken the measures necessary to maintain international peace and security" (Art 51)--with self-defence extended to include, although not uncontested, pre-emptive and preventive action, as well as a response to 'armed attack' by non-state bodies; (47)) that nothing "precludes the existence of regional arrangements and agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies are consistent with the Purposes and Principles of the United Nations" (Art 52(1)); and that the "Security Council shall, where appropriate, utilize such arrangements or agencies for enforcement action under its authority" (Art 53(1)). For the purposes of this discussion, attention is forthwith only given to regional conventions and initiatives to counter terrorism.
4.1 Regional conventions on terrorism
Several regional intergovernmental organisations have adopted conventions that deal explicitly with the issue of terrorism. At a regional level, these conventions complement the international conventions and protocols previously referred to. These regional conventions, in chronological order, are: (48))
-- Organization of American States (OAS), OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance, 2 February 1971 (Washington, DC).
-- Council of Europe, European Convention on the Suppression of Terrorism, 27 January 1977 (Strasbourg).
-- South Asian Association for Regional Cooperation (SAARC), SAARC Regional Convention on Suppression of Terrorism, 4 November 1987 (Kathmandu).
-- League of Arab States, Arab Convention on the Suppression of Terrorism, 22 April 1998 (Cairo).
-- Commonwealth of Independent States (CIS), Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism, 4 June 1999 (Minsk).
-- Organisation of the Islamic Conference (OIC), Convention of the Organisation of the Islamic Conference on Combating International Terrorism, 1 July 1999 (Ouagadougou).
-- African Union (AU) (formerly the Organization of African Unity--OAU), OAU Convention on the Prevention and Combating of Terrorism, 14 July 1999 (Algiers), also known as the Algiers Convention; and the Protocol to the OAU Convention on the Prevention and Combating of Terrorism, 8 July 2004 (Addis Ababa).
These conventions have much in common with the UN Security Council and General Assembly declarations on terrorism, and also share common elements with the international conventions and protocols previously referred to. They all, explicitly or implicitly, condemn terrorism to be a criminal act that is not to be considered a political crime; state the aim of multilateral co-operation; make provision for preventive measures; call for the exchange of information and co-operation for preventing and combating terrorist crimes; and establish common prosecution and extradition procedures. The most noticeable differences relate to their definitions (or lack of formal definitions) of terrorism and the extent to which they make provision for exceptions relating to the right to self-determination.
Most of the conventions do not define terrorism, but merely refer to offences or crimes that constitute acts of terror. The exceptions are all conventions concluded in 1999, namely the CIS Treaty, which has a narrower (near domestic) context but which includes a definition of 'technical terrorism', the OAU Convention and the OIC Convention. The scope of these definitions are, however, not as comprehensive or inclusive as the more recent attempts, those of the UN in particular. Concerning self-determination, only two of the conventions specifically deal with this matter. As an exception, the OIC Convention of 1999 in its preface confirms "the legitimacy of the right of peoples to struggle against foreign occupation and colonialist and racist regimes by all means, including armed struggle to liberate their territories and attain their rights to self-determination and independence in compliance with the purposes and principles of the Charter and resolutions of the United Nations". Along similar lines, the Algiers Convention of 1999 in Art 3 also states that "the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts", bearing in mind that "(p)olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act". The AU Protocol of 2004 that supplements the OAU Convention also links the commitments of state parties to take appropriate actions against the perpetrators of mercenarism as defined by the OAU Convention for the Elimination of Mercenarism in Africa, 1977 (Art 5(1)(e)).
4.2 Regional initiatives to combat terrorism
Apart from providing a legal framework to prohibit terrorism, through these conventions, most regional organisations have also developed strategies and programmes to combat terrorism. Two brief examples suffice.
Firstly, the EU's counter-terrorism initiatives, (49)) especially after 2001, are aimed at developing a common approach to counter-terrorism through declarations, reports and decisions on terrorism adopted by EU heads of state and governments, the European Council and the European Commission. Similar to the UN initiatives, these measures are aimed at operational prevention and focus on matters such as judicial co-operation, extradition, mutual assistance and liaison, the exchange of information, and mutual recognition of decisions in criminal matters. Specific programmes have also been introduced that involve, amongst others, the exchange and training of and co-operation between law enforcement authorities and persons responsible for action to combat organised crime; and programmes of incentives, training and exchanges for practitioners in criminal matters.
After September 11, the European Council also implemented an Action Plan against terrorism agreed upon by Justice and Home Affairs Ministers and the Commission, involving a large number of operations. The plan required the Council to focus on the practical details of a common legislative framework, the European arrest warrant, the common definition of terrorist offences and the freezing of assets; on increased co-operation between the operational services responsible for combating terrorism such as Europol, Eurojust, the intelligence services, police forces and judicial authorities; on effective measures to combat the funding of terrorism by the formal adoption of directives on money-laundering; on the prioritisation of air transport safety and security; and on a civil protection alert system, including early warning and response systems to threats from biological and/or chemical agents. As a form of structural prevention, a dialogue of equals between civilisations was encouraged, amongst others through cultural exchange programmes, mainly to avoid equating terrorism with the Arab and Muslim world. Emergency aid and humanitarian assistance were also allocated, most notably to Afghanistan.
The EU's role in counter-terrorism is, however, not non-problematic and it is contended that it poses a paradox. "On the one hand, the national governments agree in principle that cooperation at the EU level is a good thing because of the cross-border nature of the terrorist threat. On the other, they are slow to give the EU the powers ... and resources ... it would need to be truly effective in this area". (50)) The problem is that national governments are not willing to give the EU powers that erode domestic laws and practices, bearing in mind that security policy is inextricably linked to national sovereignty.
In the case of the AU, the framework provided by the OAU Convention of 1999 and the Protocol of 2004 is supplemented by the African Union Non-Aggression and Common Defence Pact, 31 January 2001 (Abuja). The Pact specifically declares "the encouragement, support, harbouring or provision of any assistance for the commission of terrorist acts and other violent trans-national organized crimes against a Member State" to constitute an act of aggression (Art 1(d)(xi)). Accordingly, member states are prohibited to use their territory "for the stationing, transit, withdrawal or incursions of irregular armed groups, mercenaries and terrorist organizations operating in the territory of another Member State". (Art 5(c)). They are also obliged to "undertake to extend mutual legal and all other assistance in the event of threats of terrorist attack or other organized international crimes" and to "arrest and prosecute any irregular armed group(s), mercenaries or terrorist(s) that pose a threat to any Member State" (Art 6).
Apart from the fact that the implementation mechanisms provided by the Pact are also available in a counter-terrorism role, amongst others, military operations decided by the Peace and Security Council (of the AU), including the use of the African Standby Force, provision is also made for the establishment of The African Centre for Study and Research on Terrorism (ACSRT) (Art 10 and 11). The ACSRT is tasked to centralise, collect and disseminate information, studies and analysis on terrorism and terrorist groups; to provide training programmes on preventing and combating terrorist acts in Africa; and to assist member states develop the expertise and strategies for the prevention and combating of terrorism in accordance with regional conventions and the Plan of Action on the Prevention and Combating of Terrorism in Africa (Art 13). The Plan of Action and the recommendations of the Inter-Governmental High Level Meeting on the Prevention and Combating of Terrorism in Africa, which was finalised in Algiers from 11-14 December 2002, deals with operational counter-terrorism measures. The AU, through its Assembly, also supports the establishment of a Code of Conduct geared towards combating terrorism and promoting humanitarian and moral values. This is in support of a previous proposal of the 13th Summit of the Non-Aligned Movement that a Counter-Terrorism Code of Conduct be drafted under UN auspices. (51))
Multilateral initiatives of an international and regional nature in response to terrorism predate the ending of the Cold War, although the frequency and intensity of international conventions, counter-terrorism programmes and strategies have increased significantly during the 1990s. In this respect five waves of counter-terrorism initiatives can be identified, namely, a first wave during the 1960s, mainly in response to the hijacking of aircraft; a second wave during the 1970s, mainly in response to the Munich-events, terrorism related to the Israeli-Arab conflicts, and revolutionary terrorism; a third wave during the early-1990s, triggered by the bombing of aircraft flights during the late-1980s; a fourth wave during the mid- to late-1990s, characterised by an increase in attacks on American targets and the involvement of the al-Qaeda network; and a fifth post-September 11 wave of counter-terrorism efforts.
Until the mid-1990s there was little consensus on the definition of terrorism, mainly on account of the politics of national liberation wars and the right to self-determination. Thereafter the UN sanction regime, as a punitive measure, proved effective, more so against states such as Libya and Sudan, than against transnational movements such as the Taliban and al-Qaeda. However, during the late-1990s and thereafter, by declaring terrorist activities to be threats to international peace and security, terrorist acts were stigmatised and a growing international consensus against terrorism was consolidated. (52))
The development of the counter-terrorism regime over the past four decades, spearheaded by the UN, corresponds with and is to a large extent a response to the successive waves of terror. This has culminated in the criminalisation of terrorism; in an extensive international and regional moral and legal framework for counter-terrorism based on a series on conventions, protocols and declarations; in the development of comprehensive counter-terrorism strategies of an operational nature at global and regional levels based on dissuasion, denial, deterrence, development and defence; in specific counter-terrorism plans of action and programmes; in the development of a counter-terrorism capacity in the form of institutional, law enforcement and security infrastructure; and in broad-based developmental initiatives as a form of structural prevention.
Much has been made of recent US unilateralism in combating terror. Although this relates, amongst others, to 'Homeland Defense' measures, the establishment of the National Counterterrorism Center and its leadership and member agencies, and the Intelligence Reform and Terrorism Prevention Act, 2004--counter-terrorism measures of a predominantly domestic nature and scope--it must be borne in mind that the military intervention and counter-terrorism operations in Afghanistan, Iraq, the border regions of Pakistan, the Horn of Africa and the Philippines are in fact a multilateral 'coalition of the willing' headed by the US. (53)). In contrast, the global counter-terrorism regime has an undeniable multilateral nature, manifesting at the global, regional and sub-regional level. The main emphasis has shifted from a reaction to terrorist events, although this still occurs at times, to pro-active operational and structural prevention. At a regional level the same pattern is noticeable, although there is a difference in respect of a North-South divide regarding initiatives. Whereas the moral and legal framework for counter-terrorism in, for example, the EU is less defined and specific, the anti-terror strategies and programmes that are in place are extremely sophisticated, complex and well-supported by institutional infrastructures and capacity. Within, for example, the AU, the opposite applies. The moral and legal frameworks are comprehensive and are supported by political rhetoric, whereas the operational counter-terrorism capacity is sadly lacking.
Apart from the post-millennium development imperative, terrorism and counter-terrorism undeniably occupy the most prominent position on the current international agenda. Although the US, as the world's sole superpower, occupies a pivotal position in post-September 11 counter-terrorism initiatives, also being the major focus of terrorist attacks, it would be a mistake to reduce counter-terrorism to unilateralism. The multilateral counter-terrorism regime has been developing for over four decades and although the scourge of terrorism has not been eradicated, global and regional efforts to combat terror have made remarkable progress and proved successful in many respects. Apart from providing a framework within which most of the unilateral and bilateral counter-terrorism activities take place, these multilateral initiatives--with the UN at the forefront--deserve due credit in their own right.
1. Kiras, J D, "Terrorism and globalization", in Baylis, J and S Smith (eds), The Globalization of World Politics: An Introduction to World Politics, 3rd edition, Oxford, University Press, Oxford, 2005, p 479. See pp 480ff for a discussion of this relationship.
2. United Nations, A more secure world: Our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change, United Nations Department of Public Information, DPI/2367, December 2004, pp 47-48.
3. Kiras, J D, op cit, p 479.
4. To the extent that regime theory is involved (considering the emergence of a global counter-terrorism regime), the following conceptual distinction is made: principles "are represented by coherent bodies of theoretical statements about how the world works", norms are "general standards of behaviour, (that) identify the rights and obligations of states" and arguably also non-state actors; and rules "operate at a lower level of generality than principles and norms". Little, R, "International regimes", in Baylis, J and S Smith, op cit, p 373.
5. These perspectives on war (or the use of armed force) are that war is always unjustified and therefore can never be justified; war is beyond legal or moral justification; war is sometimes justified and does require and can have justification; and war is always justified and therefore requires no justification. Claude, I L, States and the Global System: Politics, Law and Organization, St Martin's Press, New York, 1988, p 71.
6. For a detailed discussion, see Du Plessis, A, "Just war doctrine: Developments, ramifications and its relevancy in the South African context", Strategic Review for Southern Africa, Vol XII, No 1, May 1990, pp 14-50.
7. De Lupis, I D, The Law of War, Cambridge University Press, Cambridge, 1987, pp 129-137. For the codification of these laws, see; Geneva Conventions, 1949, and Protocols I and II Additional to the Geneva Conventions, 1977.
8. Karlshoven, F, Constraints on the Waging of War, Marthinus Nijhoff Publishers, Dordrecht, 1987, p 73.
9. E Lupis, I D, op cit, pp 43-44.
10. International Institute for Strategic Studies (IISS), Strategic Survey 2004/5, Routledge, London, 2005, p 71. This is precisely the grounds on which the US had declined to become a party to Protocol I.
11. United Nations, A more secure world ..., op cit, p 51.
12. Frost, M, Ethics in International Relations: A Constitutive Theory, Cambridge University Press, Cambridge, 1966, p 109. Frost (p 105) regards "a norm as settled where it is generally recognized that any argument denying the norm (or which appears to override the norm) requires special justification". Norm denial would therefore be tantamount to deviant behaviour.
13. United Nations, A more secure world ..., op cit, p 47.
14. Unless otherwise indicated, this summary is near-verbatim based on Ibid, pp 48-51.
15. Apart from Ibid, pp 48-49, also see: United Nations, General Assembly and Security Council, Report of the Policy Working Group on the United Nations and Terrorism, Annex to identical letters dated 1 August 2002 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, A/57273--S/2002/875 annex, pp 2-3 and 7-11; and United Nations, General Assembly, Protecting human rights and fundamental freedoms while countering terrorism, Report of the Secretary-General, A/60/374, 22 September 2005, p 2. See also Kofi Annan's endorsement of this strategy in United Nations, Secretary-General, A Global Strategy for Fighting Terrorism, keynote address to the Plenary of the International Summit on Democracy, Terrorism and Security, Madrid, 10 March 2005, at http://www.un.org/News/ossg/sg/stories/articleFull.asp?TID=3&Type=Article (accessed on 9 November 2005).
16. United Nations, Counter-Terrorism Executive Directorate, International Action Against Terrorism, United Nations Department of Public Information, DPI/2375C, January 2005, p 1.
17. This summary, in its entirety, is based on United Nations, United Nations Treaty Collection, Treaty Event: Multilateral Treaties on Terrorism, Summaries, at http://untreaty.un.org/English/tersumen.htm (accessed on 9 November 2005).
18. UN member states are also requested to adopt the eight Special Recommendations on Terrorist Financing issued by the Financial Action Task Force on Money-Laundering supported by the Organization for Economic Cooperation and Development (OECD), and to adopt the measures recommended in its various best practices papers. United Nations, A more secure world ..., op cit, p 49.
19. The General Assembly has also called for greater efforts to promote the culture of peace, by fostering dialogue among states and has adopted the text on a Global Agenda for Dialogue Among Civilizations (document A/60/L.6). See United Nations, General Assembly, General Assembly Calls for Greater Efforts to Promote Culture of Peace, Foster Dialogue Among Civilizations, Press Release, GA/10407, 20 October 2005, at http://www.un.org/News/Press/docs/2005/ga10407.doc.htm (accessed on 15 November 2005).
20. Oudraat, C de Jonge, The United Nations and the campaign against terrorism, Disarmament Forum, 2004, p 32, at http://www.unidir.ch/pdf/articles/pdf-art2017.pdf (accessed on 9 November 2005). Oudraat also contends that the legality of the use of force in terms of Resolution 1368 (2001) has received little attention.
21. United Nations, Counter-Terrorism Executive Directorate, Countering Terrorism: Progress and Challenges, United Nations Department of Public Information, DPI/2375B, January 2005, p 1; and United Nations, Security Council, Report by the Chair of the Counter-Terrorism Committee on the problems encountered in the implementation of Security Council resolution 1373 (2001), S/2004/70 annex, 26 January 2004, p 4.
22. United Nations, Counter-Terrorism Committee, What does the CTC ask of States?, 2003, at http://www.un.org/Docs/sc/committees/1373/ask.html (accessed on 9 November 2005).
23. United Nations, Counter-Terrorism Executive Directorate, Countering Terrorism: Progress and Challenges, op cit, p 1.
24. United Nations, Counter-Terrorism Committee, Counter-Terrorism Committee, 2003, at http://www.un.org/Docs/sc/committees/1373/composition.html (accessed on 9 November 2005).
25. In the following fields: legislative drafting; financial law and practice; custom law and practice; immigration law and practice; extradition law and practice; police and law enforcement; illegal arms trafficking; and any other relevant area of expertise, including assistance. United Nations, Counter-Terrorism Committee, How does the CTC work with States?, 2003, at http://www.un.org/Docs/sc/committees/1373/work.html (accessed on 9 November 2005).
26. Effective executive machinery includes, inter alia: police and intelligence structures to focus on terrorist activities; customs, immigration and border controls to prevent the movement of terrorists and the establishment of safe havens; and controls preventing the access to weapons by terrorists. United Nations, Counter-Terrorism Committee, Setting Priorities, 2003, at http://www.un.org/Docs/sc/committees/1373/priorities.html (accessed on 9 November 2005).
28. United Nations, Security Council, Report by the Chair of the Counter-Terrorism Committee on the problems encountered in the implementation of Security Council resolution 1373 (2001), op cit.
29. United Nations, Counter-Terrorism Committee, Revitalization of the Counter-Terrorism Committee, 2003, at http://www.un.org/Docs/sc/committees/1373/revitalization.html (accessed on 9 November 2005).
30. United Nations, Counter-Terrorism Committee, Counter-Terrorism Executive Directorate (CTED), 2003, at http://www.un.org/Docs/sc/committees/1373/cted.html (accessed on 9 November 2005); and United Nations, Counter-Terrorism Executive Directorate, Frequently asked questions about UN efforts to combat terrorism, United Nations Department of Public Information, DPI/2375E, January 2005, p 2.
31. United Nations, Security Council, Security Council Reaffirms Terrorism One of the Most Serious Threats to Peace, 'Criminal and Unjustifiable', Regardless of Motivation, Presidential Statement, Press Release SC/8454, 20 July 2005, http://www.un.org/News/Press/docs/2005/sc8454.doc.htm (accessed on 21 July 2005).
32. United Nations, Counter-Terrorism Executive Directorate, Countering Terrorism: Partner bodies and organizations, United Nations Department of Public Information, DPI/2375D, January 2005, pp 1-2. This source also lists the organisations and partner bodies.
33. United Nations, Counter-Terrorism Executive Directorate, Countering Terrorism: Progress and Challenges, op cit, pp 1-2. This source provides statistical data on the progress, dated January 2005.
34. Oudraat, C de Jonge, The United Nations and the campaign against terrorism, op cit, pp 34-36.
35. United Nations, A more secure world ..., op cit, p 52.
36. Ibid. Kofi Anan also endorsed this definition. See United Nations, Secretary-General, A Global Strategy for Fighting Terrorism, op cit, p 1.
37. A detailed account is provided in United Nations, Security Council, Report by the Chair of the Counter-Terrorism Committee on the problems encountered in the implementation of Security Council resolution 1373 (2001), op cit, pp 8-9.
38. United Nations, Counter-Terrorism Executive Directorate, Countering Terrorism: Progress and Challenges, op cit, p 2, based on an independent study conducted by the United States-based Fourth Freedom Forum and the Joan B Kroc Institute for International Peace Studies (University of Notre Dame). See also Fourth Freedom Forum and the Joan B Kroc Institute for International Peace Studies (University of Notre Dame), An Action Agenda for Enhancing the United Nations Programme on Counter-Terrorism, Executive Summary, 15 April 2005, at http://www.ctproject.info/html/exec_summary.html (accessed on 9 November 2005). The latter report makes the following recommendations: establish standards and priorities for compliance; facilitate co-ordinated delivery of technical assistance; improve international cooperation; enhance public communications; and uphold human rights.
39. United Nations, General Assembly and Security Council, Report of the Policy Working Group on the United Nations and Terrorism, op cit, p 6.
40. Ibid, p 9.
41. United Nations, Security Council, Resolution 1456 (2003), annex, point 10.
42. See, for example, the full text of United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General of the United Nations (Kofi A Annan), United Nations Department of Public Information, DPI/2386, April 2005.
43. For a detailed account see: United Nations, General Assembly, In War on Terror, Many Countries Violating Human Rights Standards, Third Committee Told, Third Committee, GA/SHC/380, 26 October 2005, at http://www.un.org/News/Press/docs/2005/gashc3830.doc.htm (accessed on 9 November 2005); and United Nations, General Assembly, Protecting human rights and fundamental freedoms while countering terrorism, Report of the Secretary-General, A/60/374, 22 September 2005.
44. United Nations, General Assembly, Protecting human rights and fundamental freedoms while countering terrorism, op cit, paragraphs 25 and 26, pp 8-9.
45. Addressing the Security Council in January 2002. Quoted in United Nations, Counter-Terrorism Committee, What does the CTC ask of States?, op cit, p 1.
46. International Institute for Strategic Studies (IISS), op cit, pp 50-52.
47. Ibid, p 57.
48. United Nations, United Nations Treaty Collection, Conventions on Terrorism, at http://untreaty.un.org/English/Terrorism.asp (accessed on 9 November 2005).
49. See: European Commission, Justice and Home Affairs, Terrorism--the EU on the move, at http://europa.eu.int/comm/justice_home/news/terrorism/documents/index_en.htm and ... /terrorism/programmes/index_en.htm (accessed 9 November 2005); European Union, Declaration by the Heads of State or Government of the European Union and the President of the Commission: Follow-up to the September 11 Attacks and the Fight against Terrorism, SN 4296/2/01 REV 2, Brussels, 19 October 2001, pp 2 and 5: and the European Union, Commission of the European Communities, Report from the Commission: Overview of EU action in response to the events of the 11 September and assessment of their likely economic impact, Com(2001) 611, Brussels, 17 October 2001, pp 2-4.
50. International Institute for Strategic Studies (IISS), "The EU's role in counter-terrorism", Strategic Comments, Vol 11, Issue 2, 7 April 2005, p 1.
51. See: African Union, Assembly of the African Union, Decision on Terrorism in Africa, Assembly/AU/Dec. 15(II); and Decision on the Elaboration of a Code of Conduct on Terrorism, Assembly/AU/Dec. 14(II), 2003.
52. Oudraat, C de Jonge, The United Nations and the campaign against terrorism, op cit, pp 29-32.
53. See: United States of America, "The National Counterterrorism Center: Implementation Challenges and Issues for Congress", US Embassy e-doc alert: Foreign Relations, Information Resource Center, Public Affairs Office, US Embassy, South Africa, Pretoria, 18 May 2005; and United States of America, White House, "President Discusses War on Terror", Address by President George W Bush at the National Defense University, Fort Lesley J McNair, 8 March 2005, p 2. http://www.defenselink.mil/news/Mar2005/20050308_116.html (accessed on 11 March 2005).
Anton du Plessis*
*Prof Anton du Plessis is a lecturer in International Relations with the Department of Political Sciences, University of Pretoria.
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|Author:||du Plessis, Anton|
|Publication:||Institute for Strategic Studies|
|Date:||Nov 1, 2005|
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