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The Law and Policy of the War Against Terrorism
In response to the September 11 terrorist attacks, as well as subsequent high-profile terrorist attacks in major international cities, the United Nations has embarked on the global governance of counter-terrorism efforts.
Chapter VII of the UN Charter states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken....to maintain or restore international peace and security.” Chapter VII also maintains that all members of the United Nations make available to the Security Council “armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”
On September 28, 2001, the United Nations Security Council adopted Security Council resolution 1373. Through this resolution, the Council imposed certain obligations on member states and called for additional measures in the area of counter-terrorism. These include the criminalization of terrorism-related activities and provision of assistance to carry out those acts; denial of funding and safe haven to terrorists; and exchange of information on terrorist groups. The resolution created a Counter-Terrorism Committee of the Security Council, composed of the 15 council delegations, to monitor states’ implementation of the resolution and, where necessary, facilitate the provision of relevant technical assistance to member states.
UN responsibility for governing the global fight against terrorism expanded with the Security Council’s adoption on September 14, 2005 of resolution 1624. In that resolution, among other things, the Security Council called upon member states to adopt such measures as are necessary and appropriate to:
- Prohibit by law incitement to commit terrorist acts;
- Prevent terrorism; and
- Deny safe haven to terrorists.
Resolution 1624 stressed that States must ensure that any measures taken to implement these measures comply with all of their obligations under international human rights law, refugee law, and humanitarian law. The Security Council also called upon States to report to the Counter-Terrorism Committee on the steps they have taken to implement resolution 1624. Finally, the resolution directed the Counter-Terrorism Committee to help Member States build capacity to fight terrorism, through spreading best legal practices and promoting the exchange of information.
On September 8, 2006, the UN member states adopted the United Nations Global Counter-Terrorism Strategy. The strategy – in the form of a Resolution and an annexed Plan of Action – is a global instrument designed to enhance national, regional and international efforts to counter terrorism. By adopting the strategy, the Member States agreed to a common strategic approach to fight terrorism, not only sending a clear message that terrorism is unacceptable in all its forms and manifestations, but also resolving to take practical steps individually and collectively to prevent and combat it. Those practical steps include a wide array of measures ranging from strengthening state capacity, to counter terrorist threats, to better coordinating the United Nations system’s counter-terrorism activities. The adoption of the strategy in the 2005 World Summit Outcome Document fulfils the commitment made by world leaders at the World Summit held in November 2005, and builds on many of the elements proposed by the Secretary-General in his May 2, 2006 report, entitled “Uniting against Terrorism: Recommendations for a Global Counter-Terrorism Strategy.”
The United Nations’ approach to combating global terrorism is a blueprint example of how global governance is becoming a reality. First, in response to the rise of global terrorism, the Security Council identified the problem and called for some immediate steps to be taken. After a few years of study and dialogue, the Security Council called upon States to adopt certain counter-terrorism measures and created a Counter-Terrorism Committee to monitor whether Member States cooperate. Finally, five years after the September 11 attacks, the UN adopted a Global Counter-Terrorism Strategy containing the details of how Member States should be engaged in fighting global terrorism. Again, the UN Counter-Terrorism Committee was made responsible for monitoring and reporting on Member State counter-terrorism activities taken (or not taken) pursuant to the strategy.
The breadth of the resulting UN’s governance of the global counter-terrorism effort is evidenced by the announced purpose of the Fifth Special Meeting of the Counter-Terrorism Committee. At the meeting, scheduled for October 29-31, 2007, the Committee and international, regional, and sub-regional organizations will hold in-depth discussions regarding the implementation of the UN Global Counter-Terrorism Strategy, including increasing national, bi-lateral, sub-regional, regional and international efforts to deny safe haven to terrorists; improve border and customs controls; prevent and detect the movement of terrorists and illicit arms trafficking; enhance information sharing; prevent the abuse of refugee and asylum status; and identify and share best practices.
On another front, less than 24 hours after the September 11 attacks, NATO invoked for the first time Article 5 of the Washington Treaty - its collective defense clause - declaring the attacks to be an attack against all NATO members. The Alliance subsequently deployed aircraft and ships in support of the United States. Since then, and following other attacks, NATO has been engaged actively in the campaign against terrorism on both the political and military fronts. NATO supports efforts to combat terrorism through military operations in Afghanistan, the Balkans and the Mediterranean. The Reykjavik meeting of NATO foreign ministers in May 2002 further solidified the organization’s role in the war on terror. It was decided that the alliance would operate “when and where necessary to fight terrorism.” This paved the way for the wider changes made during the Prague Summit in November 2002 that further strengthened NATO’s resolve to combat terrorism.
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