Chair: Joshika Saraf, Co-Chair: Sonia Saranti

LEGAL COMMITTEE TOPIC AREAA: MEASURES TO COMBAT INTERNATIONAL TERROR-

ISM

LEGAL COMMITTEE 1

Legal Committee of the UN Measures to Combat International Terrorism

Table of Contents

TABLE OF CONTENTS 1

I. THE PERSPECTIVE OF THE LEGAL COMMITTEE 2

II.THE ISSUE AS IT NOW STANDS 2 A. THE PROBLEMATIC DEFINITION 3 B. TERRORISM AND STATE VIOLENCE; THE NOTION OF “TARGETED KILLING” 5 C. TORTURE OF TERRORISTS 5 D. THE NOTION OF THE ‘WAR ON TERROR’ 6 E. THE NOTION OF PROPORTIONALITY 7 F. INTERNATIONAL TREATIES AGAINST STATE SPONSORSHIP IN TERRORIST INITIATIVES 8 G. FINANCIAL WAR AGAINST TERRORISM 8

III.INTERNATIONAL INSTRUMENTS 9 A. INTERNATIONAL TREATIES 9 B. RESOLUTIONS 9

IV.UN BODIES CONCERNED WITH THE ISSUE AT HAND 11

V. ISSUES TO BE ADDRESSED 12

VI.BIBLIOGRAPHY 13

VII.RECOMMENDED READING 14

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Legal Committee of the UN Measures to Combat International Terrorism

I. The perspective of the legal Committee

Terrorism overall, as well as the issue of measures for combating terrorism in par-

ticular, can be seen from a lot of perspectives, i.e. social, political, economic etc.

Among those perspectives is the legal one. Within the context of the legal committee,

the notion of combating terrorism should be seen from its purely legal perspective, so

as the debate to be efficient and to the point under examination. One of the mandates

of the UNGA is the promotion of the international public law, under Article 13 UN

Charter, which writes that “The General Assembly shall initiate studies and make

recommendations for the purpose of: a. promoting international cooperation in the

political field and encouraging the progressive development of international law and

its codification; […]”. That being said, it is of crucial importance that this committee

addresses the notion of combating terrorism by references to the international humani-

tarian law as now lies and the international law of human rights, formed by the exist-

ing conventions specialised or not on terrorism and by customary international law

and any other international law sectors involved with this notion. Additionally, pro-

posals for codifications or concerted practices that could be considered as able to lead

to custom may be discussed. Purely social, political or other but legal observations do

not concern the Legal Committee and will not be accepted.

II.The issue as it now stands

Within this section, some of the problematic aspects of the existent framework for

the combat of terrorism are being examined. Although, they constitute the most

relevant to this notion and up to date problematic fields that need to be further

discussed and developed, there are many other legal issues that could be raised and

articulated, so as the problem to be adequately addressed.

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Legal Committee of the UN Measures to Combat International Terrorism

A. The problematic definition

The fundamental issue arising out of any legal discussion regarding international

terrorism is the lack of an established definition. The consequence is that one cannot

specify the limits within which to characterise a specific behaviour as a terroristic

behaviour. Thus, it is not clear when states can evoke that there is a terrorist act, or a

threat of a terrorist attack, so as to act accordingly and with respect to what

international law writes.

Indeed the struggle around the establishment of a definition is long lasting,

despite the existence of several efforts defining terrorism, which are so far considered

as inconsistent, inadequate and contradictory with each other . The ad hoc Committee 1

for Measures to eliminate International Terrorism established by the UNGA

unsuccessfully attempted to establish such a definition between 1972 and 1979. The

issue came to the surface over and over again, but all the attempts to find a

commonplace for such a definition in the context of a well-appreciated Convention

have failed . In this regard, though, it has been sustained that the reason why there is 2

no established definition of the phenomenon is not the inability of states to agree on

the range of criminal conduct that could be treated as terroristic act, but their

hesitation to discuss on sensitive issues, such as whether the so called as state

violence can be named as terroristic act . 3

This being said, there are two main points of view on this issue. First, it has been

submitted that it is impossible to establish a definition due to the fact that terrorism is

a multifactorial phenomenon with the characteristic that one cannot identify all its

factors in every case it is expressed. In this sense, according to Fletcher (2006) vio-

lence, intention; the nature of victims; the connection between the offender and the

state, the just cause, a short of organisation, a theatrical presentation, and the absence

of the sense of guilt can each be identified in a terroristic act. However, this does not

mean that they can be or shall identified in every occasion. Hence, according to this

Meisers (2008), p. 71

Guillaume (2004), pp. 538-5392

Bantekas Il. & Oette L. (2013), p. 6153

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school what one needs to do, in order to ascertain – if possible – when terrorism ap-

plies, is to look for the existence of those factors and correlate them.

To the contrary, according to the point of view of the majority of the legal theo-

rists, there is a great need of defining the notion of terrorism in precise legal terms, so

as to be able to distinguish it from the rest of the crimes . In this context, it is sus4 -

tained that there are two broad categories of definitions of terrorism, one highlighting

one of the aspects of terrorism, that is its cruel and condemnable character; a second

spotting at the distinction between terrorism and other violent acts suggesting that

there is no great difference between terrorism and the forms of state violence . 5

After 9/11, however, it is sustained – not internationally acknowledged – that the

response of the international community to the above-analysed issue has been imme-

diate. In fact the Security Council of the UN adopted the three constituent elements of

a terrorist act prescribed by the General Assembly’s 1994 Declaration on Measures to

Eliminate International Terrorism. Those three elements are first, the perpetration of

serious criminal acts; second, the intention to inflict terror on civilians, with the aim,

third, that a state abstains from undertaking a certain act or undertakes to do one . 6

Given that the majority of states adopt this ‘definitional approach’ and given that it

also exists in a Security Council Resolution , it could be argued that they constitute a 7

general principle of law, which thus could be argued as establishing international law.

Overall, it cannot but be acknowledged, that when there is no established legal

approach as to what terrorism consists of, it is impossible to enact any legislation pro-

viding for responses to terrorism, without the danger of misinterpretation and misap-

plication to the detriment of the stakeholders involved – primarily terrorism suspects

and the civilians surrounding them – and the proper and coherent development of in-

ternational law.

Meisels (2008), p. 84

Meisels (2008), p. 115

Bantekas Il. & Oette L (2013), p. 6166

UNSC Resolution 1566/2004 (par 3); UNSC Resolution 1624/20057

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B. Terrorism and state violence; the notion of “targeted

killing”

The Islamic states’ response to the terrorist activity of the Palestinian militants to

the West Bank of Gaza, following the US extra-judicial killing numerous times in the

past, which has led to the assassination of terrorist leaders by the legitimisation of the

notion “targeted killing”, has risen concerns of violation of international law standards

of legitimate warfare (Meisels (2008), p. 129). In this sense, it has been suggested that

apart from their illegality – as it is sustained that targeted killing constitutes political

assassination and not a method for combating terrorism, they are causing the opposite

results from what they aim to, i.e. the provoke the involvement of revenge-seeking

individuals in terrorist groups (Atran 2003).

As the international law of the armed conflicts now stands and principally en-

shrined in custom, the Hague Convention, the Fourth Geneva Convention, and the

First Additional Protocol to the Geneva Conventions (Protocol I), it prohibits deliber-

ate attacks on civilians/non-combatants, but does not give them total immunity from

attack. Terrorists are considered as civilians – although by their own admission, they

are not civilians – and thus they should be treated as such and not be subject to at8 -

tacks unless, at the time of the attack, they directly participate in hostilities. However,

there are attempts by state courts to broaden the notion of direct participation, so as to

expand the time period when terrorists may be legally attacked and thus restrict the

protection conferred on this category of civilians . This approach is contrary to Article 9

51(3) of Protocol I, which provides that civilians enjoy immunity from deliberate at-

tack "unless and for such time as they take a direct part in hostilities”.

C. Torture of terrorists

The torture of terrorists has been used as means of combating terrorism in the

sense of undertaking this action so as to extract information for future attacks and this

way prevent the subsequent suffering . Of course this approach raises serious doubts 10

Meisels (2008), p. 1328

Eichensehr (2007), p. 18739

Meisels (2008), p. 16610

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as to the justification of such actions. In this context, it has been observed that the

privilege against self-incrimination could be raised. However, the contra argument is

that the aim is the revealing of others’ future criminal acts (Meisels (2008), p. 166).

States tend to evoke as well their right of self defence, when they are accused of

torture of terrorists, in the sense that – despite the discussion of whether terrorists are

combatants or non-combatants – they commit acts that are of military or paramilitary

nature (Meisels (2008), p. 168). In this context, it is suggested that the notion of just

war could be justifiably evoked, whereas this would not have been so under normal

circumstances. Torturing in this context is suggested as justifiable as a measure of

combat under the thought that, if killing is justified in self defence, why torturing is

not ? 11

The notion of torturing terrorists needs to be examined in the context of the

combat of terrorism only from its preventive perspective and not as a measure of

punishment or intimidation.

D. The notion of the ‘War on Terror’

Following the 9/11 events the expression ‘War on Terror’ was addressed from 12

the USA, in particular the then President G. W. Bush, in order to describe the

approach to be followed for the combat of terrorism by the States. However, it is

sustained that this notion, along with the logic accompanying it, was the reason why

innocent people, having no connection with terrorism, were abducted and brutally

tortured by security forces on the basis of mere suspicions or wrong information . 13

It is sustained that, as long as the ‘War on Terror’ lasted, many – if not all – the

states endorsing it violated any rights that the suspected person has, in case he was

suspected for terrorist acts by means of torture, secret abductions and many other

violations of human rights. In this context, slightly before the establishment of the

though that human rights can be violated in view of combating terrorism, the Security

Meisels (2008), p. 16911

George W. Bush, joint session of Congress and the American People, 20/9/2001, available at: http://12

georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html, accessed on: 06.08.2015

Bantekas Il. & Oette L (2013), p. 62313

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Council of the UN adopted Resolutions 1456/2003 & 1624/2005, which write that a

measure to combat international terrorism cannot be legal if does not comply with the

international law of human rights . 14

But even out of the context of the ‘War on Terror’, states seem to adopt

intentionally vague criminal rules, so as to enable the recourse to emergency

procedures and increase arbitrary detention without the involvement and application

of the ordinary guarantees for suspected or even accused people . 15

E. The notion of proportionality

The principle of proportionality is a well-established principle of international

law and of international humanitarian law. Rule 14 of the International Committee of

the Red Cross (ICRC) list of rules of customary international humanitarian law

[available at: https://www.icrc.org/customary-ihl/eng/docs/v1_rul] writes that

‘Launching an attack which may be expected to cause incidental loss of civilian life,

injury to civilians, damage to civilian objects, or a combination thereof, which would

be excessive in relation to the concrete and direct military advantage anticipated, is

prohibited’. This rule is applicable to both international and non-international armed

conflicts. It is also enshrined in Article 51(5)(b) of Additional Protocol I, and repeated

in its Article 57.

From the above observations, along with other initiatives so long undertaken by

states within or out of the context of the ‘War on Terror’ to combat terrorism, it seems

that states are reluctant to apply the rules of international human rights law and

international humanitarian as the principle of proportionality indicates that the state

activities should be undertaken. In this context, the states should probably repeat that

the principle of proportionality cannot be overstepped by the mere recall of

emergency occasions, even when terrorist attacks or the threat of terrorist attacks are

at hand.

Ibid.14

Bantekas Il. & Oette L (2013), p. 62415

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F. International treaties against state sponsorship in ter-

rorist initiatives

Over the years, states have been accused of assisting terrorists in their activities.

This assistance takes the form of administrative detention, kidnappings of suspects,

illegal renditions to third countries, targeted killings – as above indicated – and other

violations of humanitarian law . 16

In this respect, it is sustained that the international community should be endorsed

to conclude Treaties of universal acceptance, which – even if not establishing a

definition of terrorism – should address the issue of state involvement in those acts

and render states internationally responsible under specific rules adjusted to the

special nature of this crime. The issue should be addressed when discussing the

measures of combating terrorism, due to the fact that state involvement is one of the

most important reasons why terrorism does not cease to develop.

G. Financial War against Terrorism

It is sustained that the financial war against terrorism is one of the most efficient

and at last legitimate ways of combating terrorism. This way terrorism is targeted in

its routes, given that the perpetration of terrorist acts is rather expensive. The issue

needs to be addressed in a two-folded manner within the context of combating

terrorism: First, the funding of terrorists, through money laundering, state

involvement or any other activity needs to be hindered. Second, the distribution of the

funds in anyway found in the hands of terrorist groups needs to be impeded.

In this regard, specific measures constituting the so-called as ‘Financial War

against Terrorism’ should be further discussed within the international community,

whereas the required effective cooperation among states to conduct this ‘War’ is of

crucial importance . 17

Bantekas Il. & Oette L (2013), p. 61616

See indicatively: Financial Action Task Force, The Financial War on Terrorism; A guide by the Fi17 -nancial Action task Force, (FATF, France 2004); American Foreign Policy Council, Confronting Ter-rorism Financing, (University Press of America, USA, 2005)

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This being said, the International Convention for the Suppression of the

Financing of Terrorism and the Declarations and Reservations submitted by the

participating states [available at: https://treaties.un.org/pages/ViewDetails.aspx?

src=TREATY&mtdsg_no=XVIII-11&chapter=18&lang=en, accessed on: 08.08.2015]

needs to be examined. The Convention entered into force on 10 April 2002 and as of

today it has been ratified by 187, this rendering it one of the most successful treaties

on anti-terrorrism.

III.International Instruments

A. International Treaties

[Indicative List]

Law of the Hague (1899 & 1907) – primarily the provisions affecting the

conduct of hostilities

Geneva Conventions of 1949

First Additional Protocol to the Geneva Conventions (Protocol I)

The Hague Convention of 1970 for the Suppression of the Unlawful Seizure of

Aircraft

GA 1994 Declaration on Measures to Eliminate International Terrorism

International Convention for the Suppression of the Financing of Terrorism,

Adopted by the General Assembly of the United Nations in resolution 54/109 of 9

December 1999, available at: http://www.un.org/law/cod/finterr.htm, accessed on

08.08.2015

B. Resolutions

[Indicative List]

Security Council Resolution 1368 (2001) Condemnation of 11 September attacks

against United States

Security Council Resolution 1373 (2001) Creation of Counter Terrorism

Committee (CTC)

Security Council Resolution 1456 (2003) Declaration by Foreign Ministers on

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combating terrorism

Security Council Resolution 1566 (2004) on Creation of working group to

consider measures against individuals, groups and entities other than Al-Qaida/

Taliban

Security Council Resolution 1624 (2005) on the Prohibition of incitement to

commit terrorist acts

For further and more detailed reading of Resolution on the issue, you may check

the Resolutions of the Counter Terrorism Committee, established by the Security

Council Resolution 1373 (2001), which was adopted unanimously on 28 September

2001 in the wake of the 11 September terrorist attacks in the United States. [available

at: http://www.un.org/en/sc/ctc/resources/res-sc.html, accessed on: 08.08.2015]

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IV.UN Bodies concerned with the issue at hand

UNGA – See – among others – the Reports of the December 17, 1996

established by Res 51/210 the ad hoc Committee for Measures to eliminate

International Terrorism [available at: http://legal.un.org/terrorism/, accessed on

08.08.2015].

The Human Rights Committee has repeatedly engaged with the notion of

terrorism so as to criticise states’ criminal legislation, where vague definitions on

terrorism are used on purpose . 18

UN Security Council – See primarily the Resolutions of the Counter Terrorism

Committee, right above referred.

UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations: 18

Israel, 21 August 2003, CCPR/CO/78/ISR, available at: http://www.refworld.org/docid/3fdc6bd57.html, accessed on 8 August 2015

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Legal Committee of the UN Measures to Combat International Terrorism

V.Issues to be addressed

Targeted killing: definition of direct participation, Is a convention needed? Are

states allowed to change the law in order to comply with it?

The Courts upheld will be national courts and most probably courts of states

involved in targeted killing. They are the ones to formulate the custom, thus the law.

In this respect is it necessary that the international community acts preventively and

establishes law, in the form of treaties so as the law not to become restrictive of the

rights conferred with the above manner?

Should the assassination of terrorists be internationally endorsed in legislation?

The notion of proportionality: what is proportional, how should it be applied?

Strict or broad approach of the already existent rules?

Are terrorists civilians/non-combatants? What do they sustain? What does

international law and legal literature writes on the issue?

State Responsibility: Extend of Responsibility and Reaction of the International

Community in case a state is identified as sponsoring terrorist initiatives for political

or other purposes.

Should the notion of the ‘War on Terror’ and its inherent meaning turn into an

international term and if so, which are the limits within which it will be specified and

addressed in attempts of international codification associated with the combating of

terrorism?

What other derogations from the international law of human rights and

international humanitarian law could you identify? Can/should the UN or the states

under the umbrella of other international organisations urge for the prohibition of

those practices?

Given all the above derogations from legality, what measures for combating

terrorism could be identified as both legitimised and efficient?

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VI.Bibliography

Atran Scott, ‘Genesis of Suicide terrorism’ Science, American Association for the

Advancement of Science 299 (2003), pp.1534-1539

Bantekas Il. & Oette L., International Human Rights; Law and Practice (Cam-

bridge University Press, UK 2013)

Eichensehr Kristen E., ‘On Target? The Israeli Supreme Court and the Expansion

of Targeted Killings’, The Yale Law Journal, Vol. 116, No. 8 (Jun., 2007), pp.

1873-1881

Financial Action Task Force, The Financial War on Terrorism; A guide by the Fi-

nancial Action task Force, (FATF, France 2004)

Fitzpatrick Joan, ‘Speaking Law to Power: The War Against Terrorism and Hu-

man Rights’ (2003), EJIL (2003), Vol. 14 No. 2, pp. 241-264, available at: http://

www.ejil.org/pdfs/14/2/413.pdf, accessed on 06.08.2015

Fletcher George P., ‘The Indefinable Concept of Terrorism’, Journal of

International Criminal Justice 4 (2006), 894 – 911, available at: http://

www.akira .ruc.dk/~fkt / f i losofi /Art ikler%20m.m/Fletcher%20-%20The

%20Indefinable%20Concept%20of%20Terrorism.pdf, accessed on: 06.08.2015

Guillaume Gilbert, ‘Terrorism and International Law’ (2004), The International

and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), pp. 537-548

Meisels Tamar, The Trouble with Terror; Liberty, Security and the Response to

Terrorism (Cambridge University Press, UK 2008)

American Foreign Policy Council, Confronting Terrorism Financing, (University

Press of America, USA, 2005)

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VII.Recommended Reading

Bantekas Il. & Oette L., International Human Rights; Law and Practice (Cam-

bridge University Press, UK 2013), [Chapters 15 & 16]

Fitzpatrick Joan, ‘Speaking Law to Power: The War Against Terrorism and Hu-

man Rights’ (2003), EJIL (2003), Vol. 14 No. 2, pp. 241-264, available at: http://

www.ejil.org/pdfs/14/2/413.pdf, accessed on 06.08.2015

Fletcher George P., The Indefinable Concept of Terrorism, ournal of International

Criminal Justice 4 (2006), 894 – 911, available at: http://www.akira.ruc.dk/~fkt/

filosofi/Artikler%20m.m/Fletcher%20-%20The%20Indefinable%20Concept%20of

%20Terrorism.pdf, accessed on: 06.08.2015

Guillaume Gilbert, ‘Terrorism and International Law’ (2004), The International

and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), pp. 537-548

Reports by Member States pursuant to Security Council resolution 1624 (2005),

available at: http://www.un.org/en/sc/ctc/resources/1624.html, accessed on:

08.08.2015

Security Council Resolution 1456 (2003) on the issue of combating terrorism

(available at: http://www.unrol.org/files/UNSCR1456.pdf, accessed on 07.08.2015)

UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding

Observations: Israel, 21 August 2003, CCPR/CO/78/ISR, available at: http://www.re-

fworld.org/docid/3fdc6bd57.html, accessed on 8 August 2015

International Convention for the Suppression of the Financing of Terrorism,

Adopted by the General Assembly of the United Nations in resolution 54/109 of 9

December 1999, available at: http://www.un.org/law/cod/finterr.htm, accessed on

08.08.2015

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Legal Committee of the UN Measures to Combat International Terrorism

Reports of the December 17, 1996 established by Res 51/210 the ad hoc Commit-

tee for Measures to eliminate International Terrorism [available at: http://legal.un.org/

terrorism/, accessed on 08.08.2015