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14. The Role Played by the UN in Countering the Phenomenon of Foreign Terrorist Fighters

verfasst von : Andrea de Guttry

Erschienen in: Foreign Fighters under International Law and Beyond

Verlag: T.M.C. Asser Press

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Abstract

This chapter is devoted to investigating the multifaceted activities carried out by the UN to counter foreign fighters. The phenomenon of foreign fighters has captured the attention of the UN system in relation to the recent events taking place in Syria and Iraq. However, the topic is not new on the UN agenda and it has already been tackled within the framework of the UN Global Counter-Terrorism Strategy. This burning issue will be analysed and discussed in light of the activities and initiatives carried out by the Security Council and by the General Assembly as well as by other UN entities such as the Counter-Terrorism Implementation Task Force, the UN Office on Drugs and Crime, the UN Counter-Terrorism Centre, and the UN Security Council (UNSC) Counter-Terrorism Committee. After providing an overview of the UN framework dealing with counter terrorism, this contribution will focus on the two most recent, and both unanimously adopted, UNSC Resolutions, namely 2170 (2014) and 2178 (2014), which attempt to present a holistic approach to the phenomenon of foreign terrorist fighters. In particular the latter Resolution, given its ‘legislative’ nature, triggers many questions concerning the far-reaching powers of the UN Security Council, already exercised through the adoption of Resolution 1373 (2001). Such questions and the criticism towards the alleged ultra vires acts of the UN Security Council will be critically addressed in this contribution.

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Vorheriges Kapitel The Obligations under International Law of the Foreign Fighter’s State of Nationality or Habitual Residence, State of Transit and State of Destination

Nächstes Kapitel States’ Prevention and Responses to the Phenomenon of Foreign Fighters against the Backdrop of International Human Rights Obligations

See for example the Italian Law No 13 of 17 April 2015, introducing urgent measures to counter international terrorism and making reference exclusively to foreign fighters.

See more on this in Van Ginkel 2014, Hinojosa Martinez 2008, p. 355 ff, Johnstone 2008a, p. 280, Iverson 2014 and Milanovic 2014.

The European Court of Human Rights, in the case ECtHR, Nada v. Switzerland, Judgment, 12 September 2012 clearly stated that ‘[i]n the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms […], the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken—or at least had attempted to take—all possible measures to adapt the sanctions regime to the applicant’s individual situation’ (para 196). Broadly similar conclusions were reached by the European Court of Justice in the case Kadi and Al Barakaat International Foundation v. Council of the EU and Commission of the EC, Judgment (joined Cases C-402/05P& C-415/05 P) 3 September 2011.

Bowett 1997, p. 79, Happold 2003, p. 593, Rosand 2006, pp. 589–590.

A list of these Conventions and a short description of their key features is available at: http://www.un.org/en/terrorism/instruments. Accessed 5 March 2015.

The High-level Panel on Threats, Challenges and Change, in its December 2004 Report, insisted very much on the urgent need to define a clear and comprehensive UN strategy to face terrorism.

See more at http://www.un.org/en/terrorism/background.shtml. Accessed 10 March 2015.

UNSC Resolution 2195 (2014) adopted on 19 December 2014 deserves to be mentioned in this framework as it is devoted mainly to countering the potential benefits terrorist groups may enjoy from transnational organised crime which might undermine affected States, and more specifically their security, stability, governance, as well as their social and economic development. This Resolution also stresses the need for international and regional cooperation, and highlights the importance that member States help build the capacity of other States. In a statement issued on behalf of the Council, by the President of the UNSC on 29 May 2015, it is underlined that the Council recognises that ‘addressing the threat posed by foreign terrorist fighters requires comprehensively addressing underlying factors, including by preventing radicalization to terrorism, stemming recruitment, inhibiting foreign terrorist fighter travel, disrupting financial support to foreign terrorist fighters, countering violent extremism, which can be conducive to terrorism, countering incitement to terrorist acts motivated by extremism or intolerance, promoting political and religious tolerance, economic development and social cohesion and inclusiveness, ending and resolving armed conflicts, and facilitating reintegration and rehabilitation’. S/PRST/2015/11.

For a different opinion see Van Ginkel 2014.

The CTITF coordination framework was institutionalised in the Department of Political Affairs of the UN in December 2009 through UNGA Resolution A/RES/64/235. The main tasks attributed to CTITF include the coordination and coherence in the overall counter-terrorism efforts of the United Nations system; facilitating and supporting initiatives and activities of the United Nations system entities in areas of their respective mandates working in coordination with relevant international, regional sub-regional organisations on key counter-terrorism matters; engaging in an enhanced manner with member States on a wide range of substantive topics in order to further the implementation of the Strategy at the national, regional and global levels, providing means for and promoting enhanced dialogue among counter-terrorism officials of member States to promote international, regional and sub-regional cooperation and wider dissemination of knowledge of the Strategy, particularly in the context of capacity building. More info at http://www.un.org/en/terrorism/ctitf/office.shtml. Accessed 10 March 2015.

UNODC is helping member States address the threat posed by drugs, crime and terrorism. Considering that in an unstable world, information and expertise on these topics is extremely important, UNODC is expanding its portfolio, and becoming active in new issues and theatres. The UNODC strategy for 2012–2015 sets out the overall strategic direction and scope of the Office’s work and lists seven sub programmes covering the five thematic areas of UNODC’s work along with two cross-sectional sub programmes. The sub programmes are: (1) countering transnational organised crime, illicit trafficking and illicit drug trafficking; (2) countering corruption; (3) terrorism prevention; (4) justice; (5) prevention, treatment and reintegration, and alternative development; (6) research, trend analysis and forensics and (7) policy support. More info at https://www.unodc.org/. Accessed 10 June 2015.

The UNCCT was launched through a voluntary contribution of the Government of Saudi Arabia at the UN Headquarters in New York and relies on the existing CTITF know-how to reinforce current UN counter-terrorism initiatives and to promote new ideas to avoid duplication of efforts. More info at http://www.un.org/en/terrorism/ctitf/uncct/. Accessed 10 March 2015.

Guided by UNSC Resolutions 1373(2001) and 1624(2005), the CTC works to bolster the ability of UN member States to prevent terrorist acts both within their borders and across regions. The CTC is assisted by the Counter-Terrorism Committee Executive Directorate (CTED), which carries out the policy decisions of the Committee, conducts expert assessments of each member State and facilitates counter-terrorism technical assistance to countries. More info at http://www.un.org/en/sc/ctc/. Accessed 10 March 2015.

UNICRI is a UN entity established in 1967 to support countries worldwide in preventing crime and facilitating criminal justice. UNICRI is mandated to assist intergovernmental, governmental and non-governmental organisations in formulating and implementing improved policies in the field of crime prevention and criminal justice. More info available at http://www.unicri.it/institute/. Accessed 20 May 2015.

For the whole list of existing UNSC Sanction Monitoring Committees, see: http://www.un.org/sc/committees/. Accessed 10 March 2015.

The GCTF, which was launched in 2011, is an inclusive and informal action-oriented platform, composed of 29 States and the EU. The GCTF’s overarching and long-term goal is to reduce the vulnerability of people everywhere to terrorism by effectively preventing, combatting, and prosecuting terrorist acts and countering incitement and recruitment to terrorism. It provides a venue for national counterterrorism (CT) officials and practitioners to meet with their counterparts from key countries in different regions to share CT experiences, expertise, strategies, capacity needs, and capacity-building programs. It prioritises civilian capacity building in areas such as rule of law, border management, and countering violent extremism. More info on the GCTF is available at https://www.thegctf.org/web/guest/home. Accessed 10 March 2015.

ICCT is an independent think tank and knowledge hub that focuses on information creation, collation and dissemination pertaining to the preventative and international legal aspects of counter-terrorism. Based in The Hague (the Netherlands), ICCT focuses on themes at the intersection of preventing and countering violent extremism and human rights and rule of law related aspects of counter-terrorism. More info at www.icct.nl. Accessed 5 June 2015.

Based in the USA and in the UK, GCSS works with governments, international organisations, and civil society to develop and implement comprehensive and sustainable responses to complex international security challenges through collaborative policy research, context-sensitive programming, and capacity development. More info at www.globalcenter.org. Accessed 5 June 2015.

Excerpts of the press conference of the Director General of UNESCO are available at http://www.un.org/apps/news/story.asp?NewsID=50205#.VW8f3VLEpaN. Accessed 6 June 2015.

In a statement by the President of the UNSC issued on behalf of the Council itself, at the end of the meeting of 29 May 2015, it is clearly stated that ‘the Security Council underscores the critical importance of member States implementing fully their international obligations including those relevant to counter-terrorism and described in paragraph 6 of resolution 2178 (2014)…’.Emphasis added. S/PRST/2015/11, p. 3. For a criticism of this attitude of the UNSC see n. 2.

Ginsborg 2014, p. 609 et seq.

Krähenmann 2014, p. 38, referring to Bianchi 2007, pp. 905–910, Ginsborg 2014, pp. 612–615, Johnstone 2008b, pp. 342–343.

Emphasis added.

Krähenmann 2014, p. 42.

See for example UNSC 1649 (2005) concerning DRC in which the Council, after expressing ‘its serious concern regarding the continuation of hostilities by militias and foreign armed groups in the eastern part of the Democratic Republic of the Congo, and at the threat they pose to civilians’, demanded that ‘all such groups engage voluntarily and without any delay or preconditions in their disarmament and in their repatriation and resettlement’. Finally the Council requested the States concerned and particularly those in the region ‘to take additional measures with regard to the political and military leaders of the foreign armed groups present in their respective territories, including, where necessary, by taking action to bring them to justice or by taking appropriate measures of international cooperation and judicial assistance’. Para 17 of the Resolution.

In UNSC Resolution 1566 (2004), the UNSC condemns terrorist acts, defined as ‘criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, [and which] are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature’ See more on this in Chap. 12 by Amoroso in this volume.

See more on this in Cassese 2013, p. 189 ff; Scharf 2011, p. 360; Fletcher 2006, p. 896, Ambos 2014 and Di Filippo 2014, p. 3.

On the issue of terrorism under International Criminal Law see Chap. 10 by Heinsch in this volume.

See recently Human Rights Watch, Australia: Proposed Counterterror Laws Threaten Freedoms, 15 October 2014 available at http://www.hrw.org/news/2014/10/15/australia-proposed-counterterror-laws-threaten-freedoms. Accessed 10 March 2015.

Bianchi 2011, p. 48, Mylonaki 2011, p. 342, Saul 2006, p. 133. See also CTC, Global Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States, UN doc. S/2011/463.

See for example UNSC Resolutions 1988 (2011), 1989 (2011) and 1566 (2004).

UNSC Resolution 2170 (2014), para 7.

Ibid., para 8.

See Freeman 2011, Raphaeli 2003, p. 59 ff.

Ibid., para 10.

Pillar 4 of the Annex of the UNGA Resolution 60/288 is devoted to ‘Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism’.

See more in the fourth annual report submitted to the General Assembly by the current Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, A/769/397 of 23 September 2014.

See more in the third annual report submitted to the General Assembly by the current Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, A/HRC/25/59 of 11 March 2014.

S/PRST/2015/11.

On this point see Chap. 13 by Krähenmann in this volume.

See for example Chesterman 2008, pp. 12–16; Wouters and Odermatt 2013, p. 12.

See more on this in Chaps. 20 by Paulussen and Entenmann, 21 by Zelin and Prohov and 22 by Gartenstein-Ross and Moreng in this volume.

It may suffice in this regard to mention the extremely high number of States who did not implement several UNSC Resolutions imposing specific sanctions against the Taliban regime in Afghanistan prior to 11 September 2001.

Para 8 of the Preamble of the Resolution.

According to Hoffmann 2006, p. 40, terrorism is ‘the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change’. See more on this in Badey 1998, p. 90 and Ruby 2002, p. 9.

See more in Chaps. 9 by Sommario and 13 by Krähenmann in this volume. See also Sassòli 2006a, pp. 969–970 and Sassòli 2006b.

Krähenmann 2014, p. 42.

See Chap. 23 by Van Waas in this volume.

See more on this specific issue in Chap. 24 by Vietti and Bisi in this volume.

Goldman 2014.

See n. 2 above.

Scheinin 2014b.

Global Center on Cooperative Security, Human Security Collective and the International Centre for Counter-Terrorism—The Hague 2014, pp. 2–3.

Van Ginkel 2014.

See n. 24.

Para 1 of the Resolution.

Peters 2014.

Ibid.

Furthermore para 2 of the Resolution requests member States to employ ‘evidence-based traveler risk assessment and screening procedures including collection and analysis of travel data, without resorting to profiling based on stereotypes founded on grounds of discrimination prohibited by international law’.

Para 5.

Scheinin 2014a.

Para 9.

This happens, as an example, whenever the UNSC uses the verbs: ‘decides’, ‘calls upon’, ‘requests’, etc.

For more info on this specific challenge see Chaps. 17 by Bonfanti, 20 by Paulussen and Entenmann, 21 by Zelin and Prohov and 22 by Gartenstein-Ross and Moreng in this volume.

Para 19.

Para 16 of the UNSC Resolution. US President Obama, taking the floor at the meeting of 24 September 2014 of the UNSC devoted to the discussion and adoption of UNSC 2178 (2014), stated that ‘there is no military solution to the problem of misguided individuals seeking to join terrorist organizations. It therefore calls on nations to work together to counter the violent extremism that can radicalize, recruit and mobilize individuals to engage in terrorism…. Often it is local communities—families, friends, neighbours and faith leaders—that are best able to identify and help disillusioned individuals before they succumb to extremist ideologies and engage in violence. That is why the Government of the United States is committed to working with communities in America and around the world to build partnerships of trust, respect and cooperation’. S/PV.7272 of 24 September 2014, p. 4.

The Committee established pursuant to Resolution 1267 (1999) and 1989 (2011) (Al-Qaida) and the Analytical Support and Sanctions Monitoring Team have been requested, amongst other, to devote special focus to the threat posed by FTFs recruited by or joining ISIL, ANF and all groups, undertakings and entities associated with Al Qaida, to coordinate its efforts to monitor and respond to the threat posed by FTFs with other United Nations counter-terrorism bodies, in particular the CTITF.

CTC has been tasked to identify principal gaps in member States’ capacities to implement UNSC Resolutions 1373 (2001) and 1624 (2005) that may hinder States’ abilities to stem the flow of FTFs, as well as to identify good practices to stem the flow of FTFs in the implementation of Resolutions 1373 (2001) and 1624 (2005), and to facilitate technical assistance, specifically by promoting engagement between providers of capacity building assistance and recipients.

See more about this specific issue in Chaps. 20 by Paulussen and Entenmann, 21 by Zelin and Prohov and 22 by Gartenstein-Ross and Moreng in this volume.

The implementation of UNSC Resolutions dealing with terrorism, and more specifically of those dealing with countering FTFs, has become a relevant issue not only for UN member States, but also for regional organisations: for example, the Council of Europe has created recently a specific Committee on Foreign Terrorist Fighters and Related Issues tasked, under the authority of the Committee of Experts on Terrorism (CODEXTER), to prepare a draft Additional Protocol specifically devoted to FTFs and to implement UNSC 2178, supplementing the Council of Europe Convention on the Prevention of Terrorism. See more on this in Chaps. 18 by Creta and 19 by Darkwa in this volume.

On this issue and on the existing tools available to allow the UNSC to create its own effective monitoring system, see de Guttry 2014.

S/PRST/2015/11.

Ibid.

In his intervention at the meeting of the UNSC of 24 September 2014, the UNSG solemnly reiterated that ‘[t]hrough our collective efforts, we must ensure that all counter-terrorism actions and policies are consistent with international human rights and humanitarian law. As the custodian of the Charter of the United Nations, I want to emphasize that all measures must be fully in line with the goals and values and principles of the United Nations’. S/PV.7272 of 24 September 2014. In the UNSC President’s Statement mentioned earlier, these aspects were further emphasised ‘The Security Council reaffirms that Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law, underscores that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures’. S/PRST/2015/11.

This was the case, according to the then Special Rapporteur, for example in Belarus (see more in the 2005 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, E/CN.4/2006/98, pp. 18–19.

In a few cases which occurred before the adoption of UNSC 2178 (2014) national judges stated that art 103 gives primacy to resolutions of the UNSC, even in relation to human rights agreements. See e.g. Kadi (n. 3); R (on the applicant of Al-Jedda) (FC) v. Secretary of State for Defence [2007] UKHL 58 (2008); Youssef Nada v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment of 14 November 2007, BGE 133 II 450, 1A 45/2007. See more on this attitude Sitrefi 2012–20, p. 83.

In the Preamble of UNSC Resolution 2178, the UNSC clearly states that ‘terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone’ and underlines once more ‘the need to address the conditions conducive to the spread of terrorism’.

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Titel: The Role Played by the UN in Countering the Phenomenon of Foreign Terrorist Fighters
verfasst von: Andrea de Guttry
Verlag: T.M.C. Asser Press
Buch: Foreign Fighters under International Law and Beyond
Print ISBN: 978-94-6265-098-5

Electronic ISBN: 978-94-6265-099-2

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-94-6265-099-2_14

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