The Conflict Between Counterterrorism and Human Rights The Search For The Solution

JURIDICUM
The Conflict between Counterterrorism and Human Rights

The Search for the Solution
Isabella Carlsvärd
HT 2020
RV101A Rättsvetenskaplig Masterkurs med Examensarbete, 30 högskolepoäng
Examinator: Erika Lundell

Handledare: Mais A.M. Qandeel
Abstract
The international law governing the current counterterrorism regimes mainly derives from the
Charter of the United Nations (UN Charter). The most well-established measure among the
international cooperation is the Sanctions regime, which is based on the United Nations
Security Council’s (UNSC) Resolutions 1267 and 1373. While there is no available mechanism
to offer judicial review over these measures, it has been subject to an indirect review of regional
courts and international committees. The analysis of the case law shows that there has been a
shift from finding that the States should not be held responsible when implementing a UNSC
Resolution, towards the establishment that the high degree of discretion left to the State,
requires the State to not implement the Resolution in conflict with its human rights obligations.
It is also found that there is a sort of presumption that the UNSC would never have intended
that human rights should be set aside in its establishment of the Sanctions regime, even if it
does not explicitly refer to the requirement of human rights protection in the UNSC Resolution
1373.
Indeed, a conflict does exist between the counterterrorism measures that have severely affected
individuals’ right to a fair trial and the possibility to review the sanctions decision. The thesis
finds that there might be a possibility to rule the UNSC Resolutions as ultra vires with the effect
that it becomes invalid. While it is true that the UNSC is only bound by the UN Charter itself,
there seems to be a consensus among scholars that it is still required to follow the most
fundamental principles such as the principle of legality. As the Resolutions are too vague in
their wording and have too much of a generic application, support is found to invalidate the
current counterterrorism regime. The thesis also assesses whether the conclusion of an
international definition of the crime of terrorism would limit the scope of the application of the
Resolutions but finds that because of the past difficulties to commonly agree on a definition, it
would be undemocratic if the UNSC would establish this definition.
The most beneficial solution would instead be to create a new convention that regulates the
international counterterrorism measures. This is found to be the most sustainable solution that
would sufficiently protect human rights while at the same time become more effective in the
prevention of terrorism. By doing so, the States would have to agree on the definition of
terrorism which would limit its discretion as well as the misuse of the labeling of terrorism. It
would make it easier to review the compatibility of the implementation of the counterterrorism
measures with human rights law. Especially as there would not be a need to regard Article 103
of the UN Charter as a limitation on human rights protection, making it easier and fairer to
assess the accountability of States’ counterterrorism actions. The convention would confirm
that terrorism is a global problem that requires international cooperation in its prevention and
suppression of the crime which creates a more sustainable international peace and security with
strong human rights protection.
Table of Content
1. INTRODUCTION ........................................................................................................... 1
1.1. PURPOSE AND RESEARCH QUESTION ..................................................................................... 2
1.2. METHOD AND MATERIAL ................................................................................................... 2
1.3. DELIMITATION.................................................................................................................. 3
1.4. DISPOSITION .................................................................................................................... 4
2. THE FRAMEWORKS OF COUNTERTERRORISM .............................................................. 5
2.1. THE INTERNATIONAL LAW................................................................................................... 5
2.2. THE CASE LAW ................................................................................................................. 8
2.2.1. The Impacts of the Case Law ............................................................................... 15
3. THE SEARCH FOR THE SOLUTION................................................................................ 18
3.1. RESOLUTION 1373 ......................................................................................................... 18
3.1.1. The Powers of the UNSC ...................................................................................... 18
3.1.2. The Validity of Resolution 1373........................................................................... 20
3.2. DEFINING TERRORISM AS A MEANS TO LIMIT STATES’ DISCRETION ............................................ 24
3.2.1. Is a Definition Needed? ....................................................................................... 29
3.3. THE INTEGRATION OF HUMAN RIGHTS IN THE CURRENT COUNTERTERRORISM FRAMEWORKS ......... 31
3.4. THE ADOPTION OF A NEW CONVENTION ............................................................................. 35
4. CONCLUSION ............................................................................................................. 40
BIBLIOGRAPHY ........................................................................................................... 41
Abbreviations
CTC Counter-Terrorism Committee
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EU European Union
HRC United Nations Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ILC International Law Commission
UK United Kingdom
UN United Nations
UN Charter Charter of the United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
US United States
VCLT Vienna Convention on the Law of Treaties

1. Introduction
[I]n the political realm, human rights are not considered as a useful weapon against
the enemy but as a dangerous constraint against effective action.1
While it is agreed that terrorism acts at all times are regarded as illegal, the same sort of
consensus does not exist concerning the legality of the countermeasures. The issue has been
highly debated since 9/11 with a focus on the measures used by the United States (US) as well
as the counterterrorism measures created by the United Nations Security Council (UNSC). Even
if human rights courts have repeatedly ruled counterterrorism measures as unlawful, the same
measures are still being employed while new, more extreme, measures have been developed.
China’s counterterrorism strategy with mass detention camps and the re-education of the
Uyghurs is a recent example that shows how the international community is divided on the
question.2 In 2019 only twenty-two States issued a letter to the UN where it condemned the
measures used. In contrast, thirty-seven States defended the practice of China as needed to fight
terrorism.3 Luckily, education camps in Europe belong to the past, but as is examined in this
paper, a systematic abuse of human rights occurs in Europe’s fight against terrorism.
The example of China that shows the division proves that there is not an agreed understanding
among the States on how to fight and prevent terrorism. The lack of this understanding has
created a situation in which human rights are set aside to fight the enemy of the State. From a
security perspective, it might be regarded as required by the danger of the situation, but from a
sustainable and human rights perspective, it is obvious that the counterterrorism measures have
a greater impact on democracy, rule of law, and human rights enjoyment than the threat of
terrorism itself.4 Therefore, a balance between human rights and security needs to be
established. As stated by Professor Monshipouri: ‘the struggle against violent extremism should
not change who we are and what values we hold dear.’5 With the recent terrorist acts in the
European States such as France and Austria,6 or the attacks against university students in
Kabul,7 it is obvious that the threat of terrorism continues. However, it is unclear whether there
1
Didier Bigo and Elspeth Guild, ‘The Worst-Case Scenario and the Man on the Clapham Omnibus’ in Benjamin
J Goold and Liora Lazarus (eds), Security and Human Rights (1st Edition, Bloomsbury Publishing 2007) 100.
2
Sheena Chestnut Greitens, Myunghee Lee and Emir Yazici, ‘Counterterrorism and Preventive Repression:
China’s Changing Strategy in Xinjiang’ (2019) 44 International Security 9, 11.
3
Catherine Putz, ‘Which Countries Are for or Against China’s Xinjiang Policies?’ (The Diplomat, 15 July 2019)
<https://thediplomat.com/2019/07/which-countries-are-for-or-against-chinas-xinjiang-policies/> accessed 15
September 2020.
4
UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the
Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (2 June 2008) UN Doc
A/HRC/8/13 [20-3].
5
Mahmood Monshipouri, Terrorism, Security, and Human Rights: Harnessing the Rule of Law (Lynne Rienner
Publishers 2012) 2.
6
See BBC, ‘Vienna Shooting: Austria Hunts Suspects after ‘Islamist Terror’ Attack’ (BBC, 3 November 2020) <
https://www.bbc.com/news/world-europe-54788613> accessed 19 November 2020; BBC, ‘France Attack: Three
Killed in ‘Islamist Terrorist’ Stabbings’ (BBC, 29 October 2020) < https://www.bbc.com/news/world-europe-
54729957> accessed 19 November 2020.
7
Al Jazeera, ’Afghan Forces Capture ‘Mastermind’ of Kabul University Attack’ (Al Jazeera, 14 November 2020)
<https://www.aljazeera.com/news/2020/11/14/afghan-forces-capture-mastermind-of-kabul-university-attack>
accessed 19 November 2020.
1
exists a common counterterrorism framework for the suppression of terrorism and if the current
counterterrorism regime is in line with human rights law, or requires improvement.
1.1. Purpose and Research Question
With the visible and real threat of terrorism attacks, the need to prevent and suppress terrorism
is vital for the maintenance of international peace and security. However, this should not come
with the cost of the suppression of human rights and the required protection of fundamental
freedoms. Thus, by establishing what de lege lata is for counterterrorism, this thesis aims to
find a solution to the conflict between counterterrorism and human rights. It asks the question
of whether the solution already exists in de lege lata or if there is a need to create a new
convention on the matter.
The thesis asks whether it is sufficient to establish a hierarchy between the counterterrorism
obligations and the international human rights law, or if a sustainable balance can be found.
The thesis further analyzes to what extent States’ discretion to counterterrorism is problematic,
especially concerning the lack of a definition of the crime of terrorism. This is important to
establish as it provides further evidence of whether a new convention should be created, or if
the solution already exists in customary international law.
1.2. Method and Material
The methods used for this paper are the legal dogmatic method together with the legal analytical
method. The paper by following the legal dogmatic method to establish what the de lege lata
for counterterrorism is by examining the current international legal frameworks.8 The hierarchy
of international legal sources found in Article 38(1) of the Statute of the International Court of
Justice,9 will be employed throughout this paper. Firstly, primary international legal sources
will be used such as international conventions and customary international law. In this category,
the resolutions of the UNSC may fit in as it contains the current legal obligations for the States
supported by the Charter of the United Nations (UN Charter).10 Secondly, case law from
international courts and committees will be used to fully understand how the States have
interpreted and applied the current primary legal sources. Regional courts’ reasoning will also
be sufficient to the extent they have interpreted the international law. This will also provide a
sufficient source of how the different norms may be in conflict. Thirdly, to fully understand
how to interpret the current law, different statements and explanatory documents from the
United Nations (UN) institutions will be used as a supplement to the lack of preparatory work
to the resolutions. Lastly, as a subsidiary source, scholars’ work will provide additional
perspectives to the discussion of the counterterrorism measures.
8
Jan Kleineman, ‘Rättsdogmatisk Metod’ in Maria Nääv and Mauro Zamboni (eds), Juridisk Metodlära (2nd
Edition, Studentlitteratur 2018) 21–2.
9
United Nations, ‘Statute of the International Court of Justice’ (1946) Article 38(1).
10
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI.
2
As the thesis examines the relation between counterterrorism and human rights, the legal
analytical method will contribute to a critical assessment of de lege lata and its impacts on the
current situation.11 Additionally, the work of scholars will add to the understanding of the
current legal pros and cons of counterterrorism. It also shows different perspectives on how the
States can fight terrorism without breaching other international obligations which will
contribute to the answer to what the solution to the current problem is. Thus, the method will
help in the understanding of how de lege lata impacts the contemporary counterterrorism
measures and how the norms can be balanced, while at the same time, provide critical analysis
of whether it needs improvement. The thesis also aims at establishing whether de lege ferenda
is the solution to the problem which would require the adoption of an international convention.
1.3. Delimitation
The paper is delimited to focus on terrorism and counterterrorism that takes place during
peacetime. It will not examine this in the context of war as it would require a discussion on
counterterrorism in relation to international humanitarian law rather than human rights law.12
It is, therefore, suitable to delimit the paper to focus on the case law from European courts that
assess the implementation of the international counterterrorism strategies, rather than the US
‘War on Terror’-methods that inflicts on humanitarian law. Further, the thesis will focus on
issues with non-state terrorism. Thus, State-sponsored terrorism will not be examined either as
it is already covered extensively by international law.13 In relation to the different
counterterrorism measures available, it will solely focus on the measures of imposing sanctions
on suspected terrorists.
It is also delimited to the focus on international legislation on counterterrorism. Hence, it will

not assess the domestic definition nor the domestic legislation but instead, establish how the
international frameworks have been used and how it has violated international human rights
law. As the paper focuses on the work of the UN on this matter, it is delimited to mainly focus
on the practice of the UNSC. While it is true that the United Nations General Assembly
(UNGA) also has issued numerous resolutions on the subject,14 the Member States does not
have the same obligation to comply with these and they lack the same normative effect that a
UNSC resolution will have.15 With that said, the UNGA’s work on the comprehensive
convention will be analyzed to some extent and references will be made to its definition for a
comparative analysis while the main focus will be on the obligations created by the UNSC.
11
Claes Sandgren, Rättsvetenskap för Uppsatsförfattare: Ämne, Material, Metod och Argumentation (Norstedts
juridik 2015) 45–6.
12
For discussions on this matter, see Helen Duffy, ‘Harmony or Conflict? The Interplay between Human Rights
and Humanitarian Law in the Fight against Terrorism’ in Larissa van den Herik and Nico Schrijver (eds), Counter-
Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (Cambridge University
Press 2013); Paul Rogers, ‘A Critical Perspective on the Global War on Terror’ in Richard Jackson (ed), Routledge
Handbook of Critical Terrorism Studies (Routledge 2016).
13
Ben Saul, Defining Terrorism in International Law (Oxford University Press 2008) 318.
14
See for example: UNGA Res 49/60 (1995) UN Doc A/RES/49/60.
15
For more on how the UNGA may impact counterterrorism, see MJ Peterson, ‘Using the General Assembly’ in
Jane Boulden and Thomas G Weiss (eds), Terrorism and the UN: Before and After September 11 (Indiana
University Press 2004).
3
1.4. Disposition
Firstly, the paper analyses the existing frameworks for the suppression of terrorism. This
includes the international legislative documents as well as an assessment of how different courts
have assessed their compatibility with human rights. It will further analyze the impact that the
case law has on the contemporary view of counterterrorism and its future application.
Secondly, the paper examines what the solution is for the current problems. This includes the
examination of whether the current legal regime is valid or if the UNSC has unlawfully
extended its powers to create the counterterrorism regime. It further assesses whether the
conclusion of a definition of the crime of terrorism would offer a solution. Lastly, it will
examine whether there is a need to create a comprehensive convention that could contribute to
a clarification of the obligations, the application, and the question of responsibility if the
measures are abused.
4
2. The Frameworks of Counterterrorism
2.1. The International Law
Terrorism is not a new phenomenon. The potential regulation has been discussed by the
international community several times throughout history. The League of Nation created the
first attempt at an international convention, but it failed as India was the only State ratifying the
Convention.16 As of yet, no other draft convention has reached that far but the matter is still
discussed in the UNGA.17 Instead, the international community has drafted conventions that
condemn specific terrorist activities. For instance, concerning terrorist bombings, financing of
terrorism, and nuclear terrorism.18 These instruments have the aim to prevent terrorist acts from
taking place, but they are rather insufficient when an action has taken place and the State wishes
to respond and counteract. Neither of the Conventions contains a definition of terrorism which
will be further discussed in Section 3.2.
Additional conventions on terrorism are found from the regional organizations. For instance,
the Inter-American Organization have adopted the Convention to Prevent and Punish the Acts
of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of
International Significance19 and later the Inter-American Convention against Terrorism20 which
establishes the different forms of terrorist crimes and creates the obligation for the State Parties
to prevent them from taking place.21 In addition to this, the Council of Europe has adopted two
different legal documents on terrorism. Firstly, the European Convention on the Suppression
of Terrorism22 aims at the prevention of terrorism, but it is missing an exhaustive list of
terrorism crimes. Secondly, the Council adopted a Protocol23 as a response to 9/11,24 which
declared that the States should take the necessary steps to fill the gaps of the legal framework.
16
Lucy Martinez, ‘Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems’ 34
Rutgers Law Journal 1, 5.
17
Ben Saul, ‘Civilising the Exception: Universally Defining Terrorism’ in Aniceto Masferrer (ed), Post 9/11 and
the State of Permanent Legal Emergency (Springer 2012) 79. This was the only time a Convention was adopted
on the matter, but it received only one ratification and was thus never entered into force.
18
International Convention for the Suppression of Terrorist Bombings (adopted 15 December 1997, entered into
force 23 May 2001) 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism
(adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 197; International Convention for the
Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007) 2445 UNTS 89.
19
Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related
Extortion that are of International Significance (adopted 2 February 1971, entered into force 16 October 1973)
OASTS 37.
20
Inter-American Convention Against Terorrism (adopted 6 March 2002, entered into force 6 July 2003) AG/RES
1840 (XXXII-0/02).
21
Articles 1 and 2 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against
Persons and Related Extortion that are of International Significance.
22
European Convention on the Suppression of Terrorism (adopted 27 January 1977, entered into force 4 August
1978) ETS No. 090.
23
Protocol amending the European Convention on the Suppression of Terrorism (adopted 15 May 2003) ETS No.
190.
24
Saul, Defining Terrorism in International Law (n 13) 148–9.
5
As these sort of conventions does not exist at the international level, the legal basis for
counterterrorism is instead formed by different resolutions adopted by the UNSC.25 While it
has adopted several resolutions on the matter, two key resolutions have created the foundation
of international counterterrorism. Firstly, Resolution 1267 which has created the 1267
Sanctions Regime targeted at the al Qaeda and the Taliban.26 This mandate has now been
extended to also cover members of the group ISIL.27 Secondly, Resolution 1373 in which the
UNSC, acting under its Competences under Chapter VII of the UN Charter, has obliged the UN
Member States to take different counterterrorism measures.28
As Article 25 of the UN Charter obliges the State Parties to fully comply with the UNSC
Resolutions, the States have to give effect to the obligations included in the sanctions regimes.
These obligations include but are not limited to; the suppression and prevention of financing of
terrorist acts, to refrain from passively or actively supporting terrorists, and to deny safe haven
among other things. Compared to the usual resolutions of the UNSC, Resolution 1373 is very
generic applicable that is not limited in its application to a specific situation.29 This allows the
States more discretion in its implementation compared to Resolution 1267,30 as the UNSC does
not address in which situations Resolution 1373 should be applied.31
The Sanctions regime, included in these two Resolutions, has a listing and delisting procedure
governed by a fifteen-member large Committee. To list an individual that is linked to the
terrorist organizations, one or more States should submit it to the Sanctions Committee, and the
other States have a time-limit of 48 hours to object to the listing.32 If no objections occur, the
individual will be listed where all of its assets will be frozen, and a travel ban will start. For the
delisting, the individual has two options. Either it may complain to a Member State, or it can
submit its request of the delisting to the Ombudsperson. If the government finds that the
evidence of the listing is insufficient, a negotiation will take place between the State and the
Committee. If none of the members of the Committee opposes the request, nor the matter has
not been referred to the UNSC, the delisting will take place.33
25
For recent examples see UNSC Res 2482 (19 July 2019) UN Doc S/RES/2482; UNSC Res 2462 (28 March
2019) UNSC S/RES/2462; UNSC Res 2396 (21 December 2017) UN Doc S/RES/13966; UNSC Res 2178 (24
September 2014) UN Doc S/RES/2178.
26
UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267.
27
UNSC Res 2253 (17 December 2015) UN Doc S/RES/2253.
28
UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373; Reuven Young, ‘Defining Terrorism: The
Evolution of Terrorism as Legal Concept in International Law and Its Influence on Definitions in Domestic
Legislation’ (2006) 29 Boston College International and Comparative Law Review 23, 32; Saul, Defining
Terrorism in International Law (n 13) 48; Ben Golder and George Williams, ‘What Is Terrorism - Problems of
Legal Definition’ 27 University of New South Wales Law Journal 270, 275.
29
Michelle Gallant, ‘Funds, Rights and Terror: Her Majesty’s Treasury v Mohammed Jabar Ahmed and Others’
(2010) 21 King’s Law Journal 569, 570.
30
Juan Santos Vara, ‘The Consequences of Kadi: Where the Divergence of Opinion between EU and International
Lawyers Lies’ (2011) 17 European Law Journal 252, 257.
31
Ben Saul, ‘The Legal Death of Rebellion: Counterterrorism Laws and the Shrinking Legal Freedom of Violent
Political Resistance’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Second Edition,
Hart 2019) 332; Young (n 28) 44.
32
UNSC Res 2368 (10 July 2017) UN Doc S/RES/2368 [50-9].
33
ibid [60-80].
6
The States also have obligations under international human rights law in relation to
counterterrorism. For instance, the right to life under Article 6(1) of the International Covenant
on Civil and Political Rights (ICCPR)34 requires that the State should protect the life of the
nation. This includes the positive obligation to prevent a terrorist attack.35 Thus, by its very
nature, counterterrorism is required to protect human rights. Nevertheless, counterterrorism
measures affect human rights to a great extent. For the suspected terrorists there is a need to
ensure the effective protection of human rights such as the right to a fair trial,36 the prohibition
of arbitrary detentions,37 the prohibition of torture,38 and enforced disappearances.39 There is
also the right to privacy that should be ensured even when States conduct secret surveillance,40
and the right to property and family life should be ensured while it conducts assets freezing.41
However, if a conflict would arrive between the international obligations, Article 103 of the
UN Charter solves this as it requires that the UN Charter at all times prevail.
As for the human rights obligations, States also can lawfully derogate from their obligations
under a state of emergency. However, it is still required to follow the principles of
proportionality and necessity as well as the prohibition of discrimination.42 There is a tendency
by the human rights courts to interpret these requirements broadly when it comes to terrorism
as it is argued that the State knows best how to tackle the threat it is faced with.43 Thus, there
is some discretion for the States not only under the UNSC Resolutions but also under the human
rights obligations. However, as will be established in the next Section, there is still a
requirement for the State to conduct a careful assessment of potential human rights
infringement. While the UNSC Resolutions 1267 and 1373 refers to the respect of human rights
while fulfilling the obligations, it has been argued that it is not sufficient enough protection
from human rights violations.44 For instance, Resolution 1373 only refers to human rights
protection for asylum-seekers that are suspected of terrorism connections, but not to the other
measures the States should implement.45
Thus, to fully understand how the contemporary counterterrorism regime works with human
rights, the following section will assess regional case law from human rights courts to see how
34
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171.
35
UN Human Rights Committee, General Comment No. 36 (3 September 2019) UN Doc CCPR/C/GC/36 [7].
36
Art 14 of the ICCPR.
37
Art 9 of the ICCPR.
38
Art 7 of the ICCPR.
39
Report of the Eminent Jurists Panel on Terrorism, Counter- Terrorism and Human Rights, International
Commission of Jurists, ‘Assessing Damage, Urging Action’ (2009) 101.
40
Office of the UN High Commissioner for Human Rights, ‘Human Rights, Terrorism and Counter-Terrorism
(2007) 45; Art 17 of the ICCPR.
41
Ronald Crelinsten, ‘Conceptualising Counterterrorism’ in Andrew Silke (ed), Routledge Handbook of Terrorism
and Counterterrorism (Routledge 2018) 363.
42
Art 4 of the ICCPR.
43
Brannigan and McBride v the UK App no 14553/89; 14554/89 (ECtHR, 25 May 1993) [43].
44
Amnesty International, ‘Statement on the Implementation of UNSC Res 1373’ (Amnesty International, 30
September 2001) < https://www.amnesty.org/en/documents/ior52/002/2001/en/> accessed 15 September 2020;
For comparison, see UNSC Res 1269 (19 October 1999) UN Doc S/RES/1269 where it addresses the need to fight
terrorism while it should be based on the principles of human rights.
45
UNSC Resolution 1373 (n 28) [3(f)].
7
the States have applied the law. As follows from the Vienna Convention on the Law of Treaties
(VCLT)46 subsequent practice is an important interpretation tool that allows the objective
understanding of how the parties have applied the law.47 Thus, the following section will
contribute to the analysis of whether the current counterterrorism measures themselves leaves
too much discretion when it is too generic written. It will also give an understanding of how the
States regard their obligations and their potential hierarchy.
2.2. The Case Law
The case law shows a tendency among States to seek to justify their measures by referring to
the UNSC Resolutions. However, as it seems the trend among judges has been to go from
accepting this justification, to look at the discretion left for the State in the implementation of
the Resolution. The following cases that will be assessed show how the courts have attempted
to solve the conflict between the different obligations which have had a great impact on the
international practice of counterterrorism.
While the case of Behrami v France does not address counterterrorism measures, it shows how
there might be a possibility for States to justify their actions if it is completely based on a UNSC
resolution. In the case, the European Court of Human Rights (ECtHR) was asked to assess a
human rights violation where the applicant had been severely affected by the troops led by
France in Kosovo.48 However, the case was ruled inadmissible. As the French troops had been
sent there based on the UNSC Resolution 1244,49 the Court argued that the troops had been
under the effective control of the UN and that the case was incompatible ratione personae.50
The cases shifted the question of attribution from the State to the UNSC as it argued that the
UNSC had full authority over the actions.51 The UN responded, in what is called the ‘rejection
of the Behrami decision’,52 and limited the international responsibility for these actions.53 The
judgment has been highly criticized in which it has been called the worst decision in history
and that it was wrongly decided and reasoned.54 Even if that might be, it has still had impacted
the following cases.
Shortly after the ECtHR delivered its judgment in Behrami, the British national courts delivered
a different approach, but with a similar conclusion, that might have been influenced by the
46
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331.
47
Richard K Gardiner, Treaty Interpretation (2th edn, Oxford University Press 2017) 254.
48
Behrami v France App no 71412/01 (ECtHR 2 May 2007) [5-7].
49
UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244.
50
Behrami v France (n 48) [152].
51
Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and
Saramati Cases’ (2008) 8 Human Rights Law Review 151, 162.
52
Karima Bennoune, ‘All Necessary Means? Reconciling International Legal Regimes Governing Peace and
Security, and the Protection of Persons, in the Realm of Counter-Terrorism’ in Larissa van den Herik and Nico
Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges
(Cambridge University Press 2013) 686.
53
UNSC, ‘Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo’ (12
June 2008) UN Doc S/2008/354 [16].
54
Bennoune (n 52) 686.
8
backlash the ECtHR faced.55 In 2004, Mr. Al-Jedda, a British national, traveled to Iraq. At his
house in Baghdad, the US military arrested him on 10 October 2004 based on potential
connections to terrorism. He was directly transferred to a British detention facility where he
was held from 10 October 2004 to 30 December 2007. During this time, Mr. Al-Jedda did not
have any possibility to ask for a judicial review, and the United Kingdom (UK) did not hold a
trial on the charges. Consequently, Mr. Al-Jedda challenged the British Secretary of State for
Defence and claimed that this violated the UK’s obligation under the European Convention on
Human Rights (ECHR) and its prohibition on arbitrary detention.56 On the other hand, the
Secretary of State relied upon the UNSC Resolution 154657 and stated that this had indeed
authorized the detention of Mr. Al-Jedda. With the support from Article 103 of the UN Charter,
it further argued that the ECHR could not be applicable as its obligations under the UN Charter
prevails.58
It might be because of the ECtHR reasoning that the House of Lords took a different approach
and declared that the British troops had not acted under the effective command and control of
the UN regime. Therefore, it ruled that the actions were attributable to the UK.59 However, it
found that the detention of Mr. Al-Jedda had certainly been authorized by the UNSC Resolution
and therefore Article 103 of the UN Charter prevailed and allowed the UK to derogate from
Article 5 of the ECHR.60 Thus, a violation had not occurred, and the Court arrived at the same
conclusion as the ECtHR.
This judgment has also been highly criticized. While Orakhelsahvili agreed with the judgment
to some extent, he also stated that the Court had failed to interpret the UNSC Resolution 1546
as he found that it does not authorize the detention. A simple reference to the resolution itself
is not enough, a clear assessment needs to be made before deciding on the matter.61 Thus, when
faced with these cases, judges must assess what is covered by the resolution before justifying
the measures with Article 103 of the UN Charter. Because the House of Lords failed to do so,
he further argued that the judgment should not be part of the development of the international
law on the matter because it is incomplete.62 In addition to this, because it failed to make a
complete assessment of the Resolution, the House of Lords also missed the fact that it does not
include any reference to departing from the international human rights law which would
therefore not make Article 103 of the UN Charter applicable as no conflicting obligations have
55
ibid 687; Alexander Orakhelashvili, ‘R (on the Application of Al-Jedda) (FC) v. Secretary of State for Defence’
(2008) 102 American Journal of International Law 337, 339.
56
European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols
Nos. 11 and 14 (adopted 4 November 1960, entered into force 3 September 1953) ETS 5 Art 5.
57
UNSC Res 1546 (8 June 2004) UN Doc S/RES/1546.
58
Al-Jedda v Secretary of State for Defence [2007] UKHL 58 House of Lords [3].
59
ibid [7-19].
60
ibid [39].
61
ibid [129]. Orakhelashvili (n 55) 342–3.
62
ibid 345.
9
been recognized.63 If this interpretation would be applied in the future, it would have ‘disastrous
results for international human rights law.’64
With that said, the House of Lords’ judgment is not unique. The same approach was applied in
the Swiss Supreme Court in 2007. This was concerning the UN sanctions list upheld against
associations with al-Qaeda and the Taliban. According to the Court, Article 103 made it clear
that the obligations under the UN Charter prevail over the human rights treaties. It argued that
it would have severe consequences to the uniform application of the sanctions if the State
Parties amended the sanctions because of the possible violations of human rights.65 An
exception was declared in the relation to a jus cogens norm, which would prevail over the UN
Charter obligations, but the right to an effective remedy and a fair trial does not form part of
jus cogens.66
Nevertheless, some of the criticism has been answered and the cases have become overruled.
For instance, the UK Supreme Court annulled the Terrorism Order 2009 based on a UNSC
Resolution, with the argument that it ‘went beyond the requirements imposed by the relevant
UNSC Resolutions’.67 Further, in 2011, the Al-Jedda case reached its conclusion in the
ECtHR.68 The Court found that there had been a violation of ECHR and that the actions were
attributable to the UK troops. Hence, they could not be free from responsibility based on the
UNSC Resolution 1511.69
The ECtHR justified its deviation from the approach taken in the Behrami case with an
assessment of the different situations of Kosovo compared to that of Iraq.70 In Iraq, the UK
troops had complete effective control over the detention facility in which Al-Jedda was kept
compared to the limited effective control in Kosovo. Further support was found in the number
of UN officials who had opposed the detentions without trial. Reference was also made to the
role that the UN played in Iraq where it aimed at providing relief and not security as such.71
Conclusively, the ECtHR also held that there should be a presumption that the UNSC does not
have the intention to create resolutions that breach human rights. If a conflict arises, the ECtHR
held that the interpretation that shows the harmony between the two obligations will be
chosen.72 Thus, in this specific case, the ECtHR did not acknowledge that such a conflict
63
Christian Tomuschat, ‘R (on the Application of Al-Jedda) v. Secretary of State for Defence - Human Rights in
a Multi-Level System of Governance and the Internment of Suspected Terrorists’ (2008) 9 Melbourne Journal of
International Law 391, 401.
64
ibid 403.
65
Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs [2007] Switzerland
Federal Supreme Court ILDC 461, translated summary available at
<https://www.eui.eu/Documents/DepartmentsCentres/AcademyofEuropeanLaw/CourseMaterialsHR/HR2009/D
eWet/DeWetBackgroundReadingCase8.pdf > accessed at 20 September 2020.
66
ibid.
67
Her Majesty’s Treasury v. Mohammed Jabar Ahmad [2010] UKSC 2.
68
Al-Jedda v UK, App no 27021/08 (ECtHR, 7 July 2011).
69
70
Al-Jedda v UK (n 68) [83].
71
ibid [106-8].
72
ibid [102].
10
existed.73 Compared to previous judgments, this decision was welcomed among human rights
lawyers. They were quick to say that the key to solving the earlier problems should be the
presumption of an aim to comply with human rights in the UNSC.74
There is one circumstance that is interesting in the Court’s reasoning that might have an impact
on the future. This is where the ECtHR states that these sorts of actions can only be justified if
the UNSC explicitly says so.75 In this regard, the ECtHR leaves out any discussion for if this
could take place or discouragement for the UNSC to do so. This is in complete contrast to what
others have said on the matter; that is that the resolution would become invalid if the UNSC
would encourage actions contrary to fundamental human rights.76 If the situation would come,
while it could be argued that, with a teleological interpretation, that the UNSC resolutions to
some extent already does this, the ECtHR would have to come up with a creative solution to
overrule this argument. Chances are that it might have to adopt the same approach taken in
Behrami, where the acts will be attributable to the UN which would result in no possibilities
for judicial review for the individual.
This statement is rather similar to that of the former UN Secretary-General Kofi Annan’s
statement in 2005. He argued that preventative measures such as the use of force against threats,
such as terrorism poses, may be justified if it is authorized by the UNSC even if there is not an
immediate threat.77 In this regard, it needs to be acknowledged that this sort of anticipatory self-
defense, when there is not an immediate threat, but a latent, is not justified in customary
international law.78 Nevertheless, the Special Tribunal for Lebanon agreed and have stated that
the UNSC is allowed to do as it wishes for the safeguarding of international peace and
security.79 It stated that the only constraint of the UNSC is found in its voting structure that
allows for a check of the UNSC’s powers. Therefore, it enjoys broad discretion.80
However, the view expressed by the dissenting judge Baragwanath is probably more commonly
recognized. That is, that the UNSC still must follow the purpose and principles of the UN
Charter in its exercise of power. The rule of law is of special importance and should be satisfied
before it takes action.81 It is further stated that there should be a possibility to challenge the
UNSC, even if there is a presumption that it operates in compliance with the principle of
73
ibid [109].
74
Marko Milanovic, ‘European Court Decides Nada v. Switzerland’ (EJIL: Talk!, 14 September 2012)
<https://www.ejiltalk.org/european-court-decides-nada-v-switzerland/> accessed 27 September 2020.
75
76
Amnesty International, ‘UK: European Court Criticized UK for Violating Human Rights in Iraq’ (Amnesty
International, 8 July 2011) < https://www.amnesty.org/en/documents/EUR45/009/2011/en/> accessed 20
September 2020.
77
Report of the Secretary-General, ‘In Larger Freedom – Towards Development, Security and Human Rights for
All’ (21 March 2005) UN Doc A/59/2005 [125].
78
José E Alvarez, ‘The “Dark Side” of the UN’s War on Terrorism’ in Andras Sajo (ed), Abuse: The Dark Side of
Fundamental Rights (Eleven International Publishing 2006) 165.
79
The Prosecutor v Ayyash et al, ‘Decision on the Defence Appeals Against the Trial Chamber’s ‘Decision on the
Defence Challenges to the Jurisdiction and Legality of the Tribunal’’ (Special Tribunal For Lebanon Appeals
Chamber, 13 December 2019) Case No. STL-11-01/PT/AC/AR90.1/F0020-AR90.1/20121024/R000330-
R000391/EN/af [38-9].
80
ibid.
81
ibid Dissenting Opinion of Judge Baragwantah [66-9].
11
legality.82 This would be a preferential safeguard to ensure that the decision-maker, that is the
UNSC, complies with the law.83
Another remarkable example of the conflict between UNSC resolutions and human rights is the
Kadi case in the European Court of Justice (ECJ).84 The case regarded Mr. Kadi and the Al
Barakaat International Foundation whose assets had been frozen. The European Union (EU)
had created a regulation that had implemented the UNSC Resolution 1333,85 and after it was
found that the applicants had connections to Osama bin Laden, the EU put them on the list. As
they never were allowed to defend themselves about this decision, they challenged its legality
to the EU Courts.
The ECJ did not attempt to challenge the UNSC resolution itself, but simply reviewed the
implementing regulation created by the EU.86 The Court reasoned that there was nothing in the
UN Charter that would create the obligation for the Union to derogate from its obligations under
the EU legal system. Thus, the ECJ declared that there had been a breach of the right to be heard
and effective judicial review.87 It set the precedence that the EU and its Member States need to
apply at least the minimum of human rights when implementing a UNSC resolution. It further
held that the case was not to be attributable to the UN.88 However, this can easily be explained
by the ECJ focus on the EU Implementing Regulation, and not the UNSC Resolution. Thus, it
followed the changing development of the question of attribution.
With that said, the ECJ also made some remarks about the reasoning of the Behrami case as it
had reached a different conclusion on the question of admissibility. It argued that in the case of
Behrami, the measures had taken place outside the territory and had not been the result of a
decision of the authorities of those States.89 Thus, it accepted the reasoning by the ECtHR, but
it did not find it applicable for the Kadi case.
The judgment was not received well by the Council of the EU and the European Commission.
This was because they had only acted under the obligations imposed on them by the UNSC
resolution and were left no discretion to decide upon the matter. Therefore, the ECJ cannot
review the EU’s act but should review the UNSC. By adopting this judgment, it claimed that
the Court granted the UNSC Sanctions regime judicial immunity.90
Even if the ECJ did not look at the UNSC procedures, it still rather of a remarkable judgment
for the UN. Indeed, it could be argued that the same criticism towards the EU implementing
82
ibid [66].
83
ibid [69].
84
Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and
Commission of the European Communities Joined Cases C-402/05 and C-415-05 P (ECJ 3 September 2008).
85
UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333.
86
Angus Johnston, ‘Case and Comment: Frozen in Time? The ECJ Finally Rules on the Kadi Appeal’ (2009) 68
Cambridge Law Journal 1, 1.; Case Kadi (n 84) [294-310].
87
ibid [334].
88
ibid [314].
89
ibid [312].
90
European Commission v Kadi C-584/10 (ECJ, 30 September 2010) [60-2].
12
regulation, could be put on the UNSC procedures. Instead, it is seen that it is the States that
must evaluate how the implementation of the UNSC resolutions comply with the human rights
obligations.91 As a response, the UN has created an Ombudsperson with the task to hear the
cases where the individuals find themselves wrongly listed.92 This is a good improvement, but
it would still require that it created substantial modifications for the delisting procedures for the
UNSC to avoid further criticism of the infringements on human rights.93
After all, it is not only the ECJ that has declared that human rights protection prevails over the
obligations from the UNSC resolutions. The ECtHR delivered its judgment on a similar case
with similar arguments at the same time. This was the case of Nada v Switzerland.94 Mr. Nada’s
assets were frozen, and he received a travel ban based on allegations of involvement in
international terrorism with no possibility for judicial review.95 The Swiss Court found that it
was incompatible with Article 6(1) of the ECHR, but it argued that Article 103 of the UN
Charter prevailed over this obligation. It did not find that there was any discretion left for the
State to assess this, and therefore his human right was justifiable restricted.96 This argument
was completely dismissed by the ECtHR.97 It started with an assessment of how the State had
made attempts to minimize the current conflict between the obligations and could not find that
any such attempts had been conducted.98
The judgment was therefore similar to that of the ECJ, but it used a different technique. Here it
was an application of the harmonious interpretation seen in Article 31(3)(c) of the VCLT. It
reflects an attempt to create some sort of harmonization between the different obligations.99
Thus, it indirectly recognizes that they conflict with each other. It can therefore be argued that
the ECtHR might have had a better understanding of the difficult position the State was put in,
even if it concluded that the human rights obligation prevail.
The ECtHR further criticized the State for its failure to start with the delisting procedure when
it found that the charges were unfounded. Since it took four years for Switzerland to inform the
UN about this finding, it had a severe impact on Mr. Nada’s rights.100 It also stated that there
was nothing in the present Resolution that would prevent the Swiss authorities from offering
Mr. Nada the possibility of judicial review.101 This argument shows that the Court found that
there was indeed a possibility to adopt the sanctions regime in line with the human rights
obligations. Therefore, it is a similar argument to that of the ECJ in that the UNSC would have
91
Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University Press 2011) 157.
92
UNSC Res 1904 (17 December 2009) UN Doc S/Res/1904; The mandate was extended by UNSC Res 1989 (17
June 2011) UN Doc S/RES/1989.
93
Vara (n 30) 269.
94
Nada v Switzerland, App no 10593/08 (ECtHR 12 September 2012). In this question it was Resolution 1267 (n
26) which established the Al Qaida sanctions regime.
95
ibid [32].
96
ibid.
97
ibid [121].
98
ibid [170].
99
ibid.
100
ibid [187-8].
101
ibid [212].
13
to explicitly refer to exclude the possibility of judicial review for it to be a justifiable derogation
from human rights.102
In Sayadi v Belgium,103 the Human Rights Committee (HRC) adopted a quite similar view as
the ECJ. The couple Sayadi and Vinck brought a claim regarding a wrongful assessment that
put them on the blacklist. They were allegedly associated with Osama bin Laden and therefore
their assets were frozen. Remarkably, this happened without them being convicted of any sort
of crime.104 As evidence, they had a Belgian judicial investigation that confirmed that there was
no evidence of the claim that they had financed al-Qaeda.105
The HRC ruled the case admissible based on a State’s potential violations of the ICCPR, but it
did not assess whether the UNSC counterterrorism resolutions and strategies violated the
ICCPR. Especially since it found that the UNSC Resolution 1267 did not create a criminal
penalty which would trigger Articles 14 nor 15 of the ICCPR.106 Further, under the merits, the
HRC found that Belgium had breached Articles 12 and 17 of the ICCPR.107 Concerning
Belgium’s responsibility, it ruled that while Belgium was not responsible for the list as such,
but it had included the applicants’ names on the list.108 It was therefore responsible to also start
with the delisting procedure when it found that there was no evidence that they had connections
to terrorism.109 Thus, it does not criticize the UNSC at all, but it could be argued that it indirectly
has provided some sort of judicial review of the Resolution.110
The HRC did not make any reference to Article 103 of the UN Charter in its decision and
whether this conflicted with the ICCPR. The HRC acted as if the Article did not exist at all.111
This is surprising as the applicants brought up the matter in their statements,112 and it was
addressed by the concurring judges Yuji Iwasawa, Wedgood, and Sir Nigel Rodley.113
However, judging by the concurring opinions, it cannot be assumed that the Committee would
have reached a different conclusion. As stated by Iwasawa, they would still have had the
obligation to implement the UNSC Resolution in compliance with the obligations under the
ICCPR.114 Rodley also refers to the presumption that the UNSC would not have the intention
that the resolutions should be adopted in such a manner that it violates human rights.115
102
Erika de Wet, ‘From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security
Council Sanctions’ (2013) 12 Chinese Journal of International Law 787, 804.
103
Sayadi and Vinck v Belgium (29 December 2008) UN Doc CCPR/C/94/D/1472/2006
104
ibid [2.5].
105
ibid [2.6].
106
ibid [10.11].
107
ibid [10.8-13].
108
ibid [10.13].
109
ibid [10.8]
110
Craig Forcese and Kent Roach, ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the
Crossroads’ (2010) 42 George Washington International Law Review 217, 240.
111
Marko Milanovic, ‘Sayadi: The Human Rights Committee’s Kadi (or a Pretty Poor Excuse for One…)’ (EJIL:
Talk!, 29 January 2009) <https://www.ejiltalk.org/sayadi-the-human-rights-committee’s-kadi-or-a-pretty-poor-
excuse-for-one…/> accessed 5 October 2020.
112
Sayadi v Belgium (n 103) [4.12].
113
ibid.
114
ibid Concurring Opinion of Mr. Iwasawa.
115
ibid Concurring Opinion of Sir Rodley.
14
Judge Wedgood instead declares that the case should have been ruled inadmissible because the
complaint simply regarded the actions of the UNSC and not of Belgium. The arguments are
similar to those found in the Lockerbie case from the International Court of Justice (ICJ) and
its dissenting Judge Schwebel.116 As the Committee does not have jurisdiction to review the
UNSC resolutions, which Belgium had complied with, the Committee should not have
reviewed the complaints at all.117 Even if this is a rather unique position, it is still of importance
to these sorts of questions. As Wedgood argues that the UNSC is fulfilling its duty to prevent
terrorist acts from taking place and to protect international peace and security, at the same time
it protects the most important human right; the right to life.118 Thus, it would not be satisfactory
if other less human rights obligations would operate in a manner that defeated the purpose of
the UNSC resolutions and its implementation.119 There is therefore a need to find a balance
between these two perspectives to make sure that they both are effective.
2.2.1. The Impacts of the Case Law
Different trends can be seen in the judgments of the courts. For instance, if the actions take
place within the State’s territory, the Court is more likely to rule in favor of the applicant.120
They are also more comfortable in assessing the rights in the cases where the applicant’s assets
have been frozen, compared to when it regards issues of armed conflict.121 When it comes to
the national courts, there is a clear trend that they wish to absolve the responsibility for the
States and blamed the international organization which could potentially result in impunity.122
As the UNSC has adopted the basis of the current counterterrorism, it is of interest to see how
the judges have addressed its conformity with human rights. It seems to be a consensus that the
UNSC would never intend to infringe on human rights. Therefore, if a State attempts to justify
its wrongful measures based on a UNSC resolution, it will most certainly be denied if it is too
severe. This is most likely because of the shift where the States will be held responsible for its
wrongful implementation of the UNSC resolution rather than assessing the responsibility of the
UNSC.
This also shows a gap in the law whereas there is no possibility to review the fundamental legal
source. Even if the institutions under the UN enjoy immunity,123 it would be preferential if it at
least existed some sort of mechanisms for the review of the resolutions. For instance, if the
court would rule that the acts are attributable to the UN, the individual would not have any
116
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Dissenting Opinion of President Schwebel) [1998] ICJ Rep 9, 71.
117
Sayadi v Belgium (n 103) Dissenting Opinion of Wedgwood.
118
ibid.
119
Bennoune (n 52) 694–5.
120
See Sayadi (n 103) and Kadi (n 84), compared to Behrami (n 48).
121
ibid.
122
Bennoune (n 52) 697. See Al-Jedda (n (68) and Nada (n 94).
123
Convention on the Privileges and Immunities of the United Nations (adopted 13 February 1946, entered into
force 17 September 1946).
15
possibility to challenge the decision as was the case of Behrami.124 The individual might not
receive any compensation nor justice for what it has suffered.125 In these circumstances, the
argument that the resolution should become invalid should be preferred. However, it is most
likely that this will take place after States’ have acted upon it. Thus, the consequences will
already be suffered for the individuals affected.126 In addition to this, it is questionable if such
a situation would occur after the establishment of the case law which has provided a guide for
the interpretation of the States’ obligations under the Sanctions regime. However, the problem
with secrecy over the decision is still an issue, making it much more difficult for the individuals
to challenge the decision without being provided with sufficient evidence. Thus, a gap for legal
protections is existing. This is further developed under Section 3.3 of the thesis.
Further, the UNSC Resolution 1373 does not refer to the need to abandon the protection of
human rights in the counterterrorism measures, it simply avoids the reference.127 While scholars
are consequently criticizing this, it is interesting that the UN Committee against Torture has
interpreted the Resolution differently as it states that it indeed contains human rights
protection.128 This is similar to the presumption that the UNSC would never intend to infringe
human rights. Indeed, this need to implement counterterrorism measures while respecting
human rights has been expressed in the newer resolutions,129 even if it is questionable that this
has helped to stop the development of human rights abuses in relation to counterterrorism.130
Especially concerning Resolution 1540.131 This acknowledges that terrorists might use
chemical, biological, or nuclear weapons which is why the States are subject to the obligation
to track these sorts of weapons. This obligation applies even though it has been argued to have
a huge impact on national liberation movements as well as the political opponents who fight
for their independence.132 Thus, either the Member States apply the resolutions wrongly, or the
wording of the resolutions are too vague which allows for this application.
Therefore, it could be argued that the UNSC has left too large of discretion in the
implementation of the UNSC Resolution 1373. It has not limited the application of the
Resolution to a certain situation nor within a time-limit. Instead, it could be applied to all
situations that are classified as international terrorism.133 However, this makes it even more
remarkable that the Resolution does not include a definition of what that would be. Without a
124
It could be argued that the possibility exist at the Ombudsperson, but as will be seen it has not been as effective
as would have been necessary to be satisfactory.
125
Tomuschat (n 63) 396.
126
In this regard, the Iraq situation could be highlighted where the work of the UNSC were celebrated to a
beginning, but years later were perceived in a different light. See Alvarez (n 78) 188.
127
Clementine Olivier, ‘Human Rights Law and International Fight against Terrorism: How Do Security Council
Resolutions Impact on States’ Obligations under International Human Rights Law (Revisiting Security Council
Resolution 1373)’ 73 Nordic Journal of International Law 399, 405.
128
Ahmed Hussein Mustafa Kamil Agiza v Sweden (24 May 2005) UN Doc CAT/C/34/d/233/2003 [13.1].
129
See for instance: UNSC Res 1456 (20 January 2003) UN Doc S/RES/1456.
130
Christopher Michaelsen, ‘Permanent Legal Emergencies and the Derogation Clause in International Human
Rights Treaties: A Contradiction?’ in Aniceto Masferrer (ed), Post 9/11 and the State of Permanent Legal
Emergency (Springer 2012) 289.
131
UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540.
132
Olivier (n 127) 400.
133
Resolution 1373 (n 28).
16
definition that limits the application, the State could potentially use it in a way to limit
responsibility which would create severe consequences for the due process of the individual.
Indeed, the conflict between the States’ obligations under the UN Charter and that from the
human rights treaties is established, and even after these sorts of cases, the document remains
legally valid with the Sanctions regime continuing to be active.
17
3. The Search for the Solution
The main problems discovered in the previous Chapter are that States have difficulties with
establishing a balance between their obligations to protect human rights while at the same time
prevent and fight terrorism. Thus, the balance between the human rights obligations and the
obligations deriving from the UN Charter needs to be found. As it seems as if this problem has
derived from the current counterterrorism framework created by the UNSC, this Chapter will
firstly establish to what extent the Resolutions are valid. By doing so, it will aim to establish if
there is a limitation on the States’ discretion in their application of the Resolutions. Secondly,
it will assess whether a definition of terrorism could limit the discretion and make the UNSC
counterterrorism measures more in conformity with the principle of legality. Thirdly, the
Chapter will conduct an assessment of whether human rights can be more integrated into the
system. Finally, it will assess whether a new Convention is a solution to the problem.
3.1. Resolution 1373
3.1.1. The Powers of the UNSC
As recently stated by the Special Rapporteur Fionnuala Ní Aoláin, the UNSC ‘holds a particular
responsibility’ for the current development and problems arising from the counterterrorism
strategies.134 This is because the UNSC has played the central role in the creation of the
measures, especially the sanctions regime.135 This, together with the lack of transparency, is
extremely concerning from a human rights perspective while it at the same time has inflicted
humanitarian law.136 This statement raises the question as to whether it is believed that the
UNSC has acted outside its powers and whether the resolutions establishing the sanctions
regimes are to be regarded as ultra vires which would invalidate them.
The limitations of the UNSC’s powers are the UN Charter itself and the jus cogens norms.137
While the main purpose of the UN is to protect international peace and security and to eliminate
all threats posed against this, Article 1 of the UN Charter also mentions the need to respect
human rights. As Article 24 of the UN Charter makes the UNSC bound to act within the
purposes of the UN, it could therefore not have the power to create an obligation for the State
Parties that would be contrary to human rights. However, as it seems from the case law where
the judges have indirectly reviewed the counterterrorism measures created by the UNSC, it is a
violation of human rights.
However, Article 24 allows the UNSC discretion to create the required mechanisms during,
especially critical situations to take effective action. Therefore, the decision by the UNSC needs
134
Report of the Special Rapporteur Fionnuala Ni Aoláin, ‘Promotion and Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism’ (3 September 2020) UN Doc A/75/337 [31].
135
ibid.
136
ibid [28].
137
Forcese and Roach (n 110) 241; Alvarez (n 78) 183.
18
to be adopted quickly. This does not allow the time required to create new legislation on the
matter where all of the Member States join in with their comments.138 It neither allows the
possibility to create a general rule when adopting the resolution since it should be specifically
designed for the specific situation.139
With that said, it is argued that this is exactly what the UNSC has done with the creation of the
counterterrorism regimes. This is especially true if the never-ending war is considered and that
terrorism is considered as a permanent emergency.140 Looking at the past practice of the UNSC,
it has limited the obligations imposed on the States with a specific subject or a specific time.
While it has created more open-ended resolutions, these have been regarded as
recommendations and not as binding legislation.141 The UNSC Resolution 1373 instead contain
legally binding obligations that are imposed at all times.142
This is problematic as it is undemocratic when the UNSC only represents fifteen members that
impose these long-lasting obligations on the 193 current UN Member States.143 In the
traditional law-making process of international treaty law, all States are equal before each other.
It would therefore be contrary to this principle if the UNSC would be allowed to create law.144
Instead, the UNSC acts as a sort of ‘policeman’ making it difficult to understand while it at the
same time should act as a legislature.145 However, its resolutions might have an impact on
States’ practices that could, in theory, create new customs. But this sort of indirect law-making
is not the focus. Rather the focus is on how the UNSC can be argued to have acted outside its
limits.
The other perspective is that the UNSC is allowed, and has the obligation, under the UN Charter
to add obligations to the international legal order.146 The practice of the UNSC has also shown
that its sanctions powers do not need to be against an actual or potential threat, instead, it is
allowed to create enforcement actions to fulfill the public interests.147 But still, is it sufficient
with the fundamental principle of law-making to find the UNSC suitable as a sort of global
legislator? The usual conduct for creating an obligation to criminalize transnational crimes will
be through multilateral negotiations where the interests of the international community are not
limited to fifteen unrepresentative members. These sorts of treaties usually also contain much
more precise provisions where the elements of the offense are presented and the jurisdictional
principles. In contrast, Resolution 1373 does not contain a definition of what the crime of
138
Martti Koskenniemi, ‘The Police in the Temple Order, Justice and the UN: A Dialectical View’ (1995) 6 EJIL
325, 345.
139
140
Alvarez (n 78) 178.
141
CH Powell, ‘The Legal Authority of the United Nations Security Council’ in Benjamin J Goold and Liora
Lazarus (eds), Security and Human Rights (1st Edition, Bloomsbury Publishing 2007) 166.
142
ibid.
143
144
ibid.
145
Powell (n 141) 167.
146
Nigel D White, ‘Preventative Counter-Terrorism and International Law’ (2013) 18 Journal of Conflict and
Security Law 181, 183.
147
ibid 185.
19
terrorism is. In addition to this, the decision-making of the UNSC is not publicly recorded which
makes it difficult to assess what the intended meaning of the provisions is.148 By acting as a
global legislator, it seems inevitable that States might not comply with excessive legislative
requirements which would undermine the legitimacy, authority, and effectiveness of the
UNSC.149
3.1.2. The Validity of Resolution 1373
Indeed, after the various judgments that indirectly review Resolution 1373, it would perhaps be
sufficient to see it as invalid as it has offered States too much discretion in its implementation.
However, recently the ICJ relies upon this specific Resolution to be able to establish State
responsibility can be invoked if a State has contributed with financial means to a terrorist act.150
Thus, in this case, the ICJ uses the resolution as a sort of interpretation tool, proving that it has
still not lost its force. Nevertheless, since the ICJ does not possess the power to judicial review
over the UNSC resolutions, it could explain why it is still bound to use it.151
Looking back at the powers of the UNSC, it might be found that the UNSC has acted outside
its limits from the UN Charter which would make the document non-binding and non-
applicable.152 While it is true that there is no organ with the ability to conduct a judicial review
over the UNSC resolutions, it has happened that the domestic courts have declared a domestic
act based on a UNSC Resolution as ultra vires. This was the case in Her Majesty’s Treasury v
Mohammed Jabar Ahmed and Others153 where the UK Supreme Court assessed if it was lawful
to list the applicants under the two counterterrorism regimes created by the UNSC and
transferred into the British legislation. While the Court acknowledged that some interference
with human rights will undeniably occur when these sanctions regimes are implemented, it
raised the question of if this interference is lawful with the executive action of the UNSC acts.154
This was especially a concern with the lack of judicial review offered to the individuals who
were put on the list. Lord Philips from the Court found that there is left a degree of flexibility
for the domestic legislators when implementing UNSC Resolution 1373,155 thus creating the
possibility for the Court to assess the case without interfering with the work of the UNSC.
He continues by stating that this flexibility in the interpretation will be more restrictive when it
might interfere with human rights.156 That is why it cannot be interpreted as including the mere
148
Saul, Defining Terrorism in International Law (n 13) 240.
149
ibid.
150
Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia) (Judgment)
[2019] ICJ Rep 558 [69].
151
Forcese and Roach (n 110) 238.; Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 176 (1970) (Advisory Opinion) [1971]
ICJ Rep 16 [89].
152
International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law (13 April 2006) UN Doc A/CN.4/l.682 [331].
153
Her Majesty’s Treasury v Mohammed Jabar Ahmed and Others (n 67).
154
ibid [74].
155
ibid [125-6].
156
ibid [196].
20
suspicion of connection to a terrorist group in the wording ‘necessary or expedient’.157
Consequently, the sanctions regime is ruled to be ultra vires. In its reasoning, it is not only the
wording of the UNSC 1373 that lays the basis for this decision but also the fact that it affects
the rights in an unlimited time. This has a severe effect on human rights and cannot be
accepted.158 Thus, it has applied the same delicate indirect review of the UNSC Resolution as
the ECJ in the Kadi case. It does not expressly declare the UNSC Resolution as ultra vires
because it does not see itself possessing that sort of competence. But the effect of the judgment
will be that the UK cannot fulfill its obligations under the Resolution because its Act that
mirrors it is declared to be ultra vires.159 Thus, the domestic sanctions regimes become
disconnected from the international sanction regime. It does not only have the result in creating
diverse systems, but it will also undermine the legitimacy of the international institutions.160
The ICJ has had several different approaches when it has to some extent assessed the work of
the UNSC even if it does not possess the power to conduct a judicial review over the
decisions.161 However, it does have the ability if it would be found that the fundamental legality
of it is questioned, but this decision will not be binding on the UNSC.162 It has criticized it at
times when it has argued that it acted outside its limits,163 but it has also stated that it is allowed
to take measures outside of Chapter VII of the UN Charter if it would find it necessary.164
Certainly, the UNSC has extended its scope to some extent during its development, but most
support exists for the requirement to keep itself within the limits of the UN Charter. If the UNSC
does not see itself as bound by the law, it would be difficult to argue that its Members should
do so with legitimacy.165 Thus, there is a need to have some sort of limit even if the UN Charter
is interpreted flexibly.
The International Law Commission (ILC) has adopted the same approach as the ICJ. In its work
on the fragmentation of international law, the ILC mentions that practice has shown ‘an
informal hierarchy in international law’.166 The ILC puts Art 103 of the UN Charter first, then
comes peremptory norms, and lastly, erga omnes obligations.167 While others argue that Article
103 only applies to conflicting treaty obligations and not customary international law, 168 the
ILC finds that the UNSC practice shows that the UN Charter prevails also over customary
international law.169 However, compared to jus cogens, Article 103 does not possess the power
157
ibid [133-8].
158
ibid [175-7].
159
Gallant (n 29) 578.
160
Forcese and Roach (n 110) 220.
161
ICJ Advisory Opinion Namibia (n 151) [89].
162
163
ICJ Advisory Opinion Namibia (n 151) [89]; See also the Dissenting Opinion of Sir Fitzmaurice [112] regarding
the limitations of the powers of the UNSC, and the Dissenting Opinion of Judge Gros [34].
164
Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962]
ICJ Rep 151, 168.
165
166
ILC’s study on Fragmentation (n 152) [327].
167
ibid.
168
Bennoune (n 52) 671; Forcese and Roach (n 110) 242.
169
21
of invalidating contradicting treaty obligations.170 With jus cogens, the UN Charter should
instead be regarded as any other international treaty.171 The erga omnes obligations are however
not regarded as overriding the obligations under the UN Charter. To conclude that an obligation
is erga omnes simply creates the possibility for any State to invoke State responsibility.172 It is
therefore regarded as a procedural norm. While an erga omnes obligation can contain a jus
cogens, it is the jus cogens that will invalidate other treaty obligations and not the erga omnes
character.173
Thus, in regarded to other international norms, it is only jus cogens that have the power to limit
the UN Charter. The view is reflected in the UN Charter itself as it allows the UNSC to set
aside the prohibition of non-intervention even if this is regarded as a fundamental principle in
international law.174 However, the UN Charter does not at any time expresses the same
derogation possibility for the protection of human rights. Thus, for it to be allowed to do so, it
would require that the legislation expressly allows for this.175 With the interpretation that there
should be a presumption of some sort of human rights protection, it could be said that the organ
is bound by human rights. This, together with an interpretation of the Charter as a living
instrument shows that it should offer human rights protection while taking its actions.176
However, others are not convinced by these arguments.177 Certainly, the UN Charter states
several times that human rights should be respected, but even the human rights treaties
expressly mention that there is a possibility to derogate during an emergency.178
With that said, will the problem between the norms be solved by Article 103 of the UN Charter?
The answer, supported by the previously mentioned cases, should be no. Even when Article
103 is justifiably applied, it does not end the potential legal inquiry.179 While Article 103 might
allow derogation from other international treaty obligations, it still requires careful
consideration by the State. The presumption should always be that a normative conflict does
not exist.180 This is of special importance when it comes to individuals and humanitarian issues.
For instance, the VCLT does not allow for the suspension of a treaty during a material breach
when the treaty in question contains provisions for the protection of humans ‘in treaties of a
humanitarian character’.181 Together with a textual interpretation of the Preamble of the UN
Charter, Articles 1(3) and 24(2) where it recognizes the need to respect human rights and act
within the limits of the purpose and principles of the UN Charter, the UNSC is indeed bound
170
ibid [340].
171
ibid [345].
172
ibid [380].
173
ibid [389].
174
Article 2(7) of the UN Charter.
175
176
Bardo Fassbender, ’Targeted Sanctions and Due Process’ (2006) United Nations Office of Legal Affairs [8.3].
177
178
Article 4 of the ICCPR.
179
Al-Jedda v Secretary of State for Defence (n 58) [129]; Case Lockerbie (n 116) Joint Declaration of Judges
Bedjaoui, Ranjeva and Koroma.
180
181
Art 30(1) of the VCLT.
22
by human rights.182 This also supports the arguments that the UN perceives itself as also bound
and committed to international law and is therefore not simply a political organization.183
However, as the States are the main responsibility holders, and their actions based on
Resolution 1373 has been considered as unlawful, it might create discouragement for the States
to enforce and act on the UN resolutions. Some have regarded the solution to be to share the
responsibility between the State and the organization. Even if this is unlikely to occur, it would
be beneficial for the individuals as it would be a wider opportunity for an available remedy.184
The ECtHR judgment in the Al-Jedda case rule to some extent in favor of this concept.185 Thus,
since the only institution with the power to delist a person is the UN, not even the domestic
courts nor the international courts hold this power,186 it would be preferential if it could be held
accountable for failure to conduct this.
While the UN Charter does not expressly grant States the right to review,187 it does have the
possibility to question the procedural part of the adoption of the UNSC act, but it could not
make a judgment on the substantial, or the value, of the decision.188 If the act of the UNSC is
ultra vires, the presumption of legality and the practice of the ICJ should create the possibility
for the States to question its implementation.189 However, it would require that the State had a
strong case before doing so.190 It is difficult to see that this would happen in practice. After all,
it is the individuals who are faced with the problematic sanctions regime, and not the States
themselves.191 In the Sayadi case, the parties did discuss this possibility where the applicant
claimed that it was ultra vires, but the State and the Committee argued that it could not assess
that claim. They argued that it would have to be assumed that the UNSC has made an
assessment of the different international obligations that exist, and that it had arrived at this
conclusion. This decision should therefore be respected.192 But as the UNSC is not bound by
the human rights treaties, it is questionable if it applies the same scrutiny as the States is required
to do which would perhaps have arrived at a different solution.
At the same time, it might not be in the best interest of the individuals to have the States
determining if a UNSC resolution is adopted ultra vires. There would not be any possibility to
safeguard that it would not act in its self-interest. Therefore, the task would be best left with
182
Dapo Akande, ‘The Security Council and Human Rights: What Is the Role of Art. 103 of the Charter?’
<https://www.ejiltalk.org/the-security-council-and-human-rights-what-is-the-role-of-art-103-of-the-charter/>
accessed 25 October 2020.
183
Rüdiger Wolfrum, ‘Preamble’ in Bruno Simma and others (eds), The Charter of the United Nations: A
Commentary, Volume I (3rd Edition, Oxford University Press 2012) [9].
184
185
186
Kent Roach, ‘Accountability Mechanisms for Transnational Counterterrorism’ in Benjamin J Goold and Liora
Lazarus (eds), Security and Human Rights (Second Edition, Hart 2019) 187.
187
188
ibid.
189
Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions
(Oxford University Press 2011) 120.
190
ibid 122.
191
Gallant (n 29) 577.
192
Sayadi v Belgium (n 103) [5.6-7] and [6.1-3].
23
international lawyers,193 but it is doubting that they would be offered the possibility to do so. It
would especially be concerning for the legitimacy of the UNSC if this possibility would be
created. It is therefore in the interest of the UNSC to change its adoption of counterterrorism
measures and influence the States in the right direction.194
3.2. Defining Terrorism as a Means to Limit States’ Discretion
To understand how measures should be applied, there must be a common understanding of what
it aims to prevent. By having a definition, it is understandable what resources are required for
the effort and it limits the discretion offered to the States. 195 As of yet, there is not an
internationally agreed definition of this. The debate has been ongoing ever since
decolonization.196 On the one hand, the leading Western powers want to keep their power to
determine who is a terrorist, and therefore the threat to the public, on a case-by-case basis, while
on the other hand, other States find it necessary to constrain this power with a legal definition.197
But there have also been other difficult issues in the determination of what the definition should
be.
The States can be divided into two camps regarding the question; does international terrorism
cover the national liberation movements or state-sponsored political violence?198 After all, what
one perceives as a terrorist, might be another’s freedom fighter.199 While this statement might
be true, can it instead be defined on the means used to achieve the goal? While the entity might
fight for freedom, if they are using terrorist methods, it should be classified as a terrorist.200 But
a conclusion has not yet been reached on this issue with arguments such as ‘having no definition
of terrorism is better than having a definition which criminalizes legitimate politics or dissolves
freedoms.’201
Further problems have been concerning whether to include the basis of the motives of the
‘terrorist’. Indeed, as seen in the modern attempts to fight terrorism, the most effective way to
combat terrorism is to find the balance between the control of terrorism and the political
motivations and causes that give rise to terrorism.202 But the distinction between terrorism and
political violence has been most important not only for the prevention of the misuse of the term
but also concerning the principle of political offense exemption in relation to extradition
requests.203
193
Alvarez (n 78) 186.
194
195
Ronald D Crelinsten, Counterterrorism (Polity 2009) 39.
196
Jörg Frierdrichs, ‘Defining the International Public Enemy: The Political Struggle behind the Legal Debate on
International Terrorism’ (2006) 19 Leiden Journal of International Law 69, 71.
197
ibid 69.
198
ibid 71.
199
HHA Cooper, ‘Terrorism: The Problem of Definition Revisited’ (2001) 44 American Behavioral Scientist 881,
882.
200
ibid 887.
201
Saul, ‘Civilising the Exception: Universally Defining Terrorism’ (n 17) 80.
202
Ukraine v Russia (n 150) Declaration of Judge Robinson [11].
203
24
One explanation as to why the international community was so divided on this specific question
can be found in the different camps’ interests. On the other hand, the Third World had an
interest in excluding national liberation movements, especially for the Palestine Liberation
Organization, while the Western countries did not have an interest in this.204 However, after the
development of the World Trade Center attacks, and the US lengthy ‘War on Terror’ that has
contributed to the difficult war in Afghanistan, many countries have stopped to perceive the US
as a status quo power in this question because of its excessive approach.205 It could also be
argued that the US has created difficulties with the definition when it has used the slogan ‘War
on Terror’ which could contribute to difficulties in determining if their acts should be
considered as acts during wartime, or if it acts during peacetime targeting terrorists.206
The US’ position has also contributed to a division where States need to decide on if they are
against its approach which puts them on the enemy’s side or an ally.207 While the consequences
of its actions have been seen as too severe for many, the advantages of determining case-by-
case who is a terrorist have been more obvious. Thus, there are more difficulties to set aside
this power today than before.208 It has created a situation where the States are too dependent on
each other, and how they are perceived, which has locked the debate when it is difficult to
change the position. No one wants to be seen as the enemy to the US, because even if its position
has been questioned, it still has great military power that it is not afraid to put to use.
The question of whether to include State terrorism has also been problematic. For instance, the
US has argued that it should not be included mainly because it wanted to avoid other States'
possible condemnation of Israel.209 This position has also been protected by the former
Secretary-General Kofi Annan who argued that this is already covered by the prohibition of the
use of force.210 Further discussion has also been about whether or not more simple human rights
violations committed by terrorists should be included. In this relation, the US has declined this
possibility. A possible explanation as to why is that it would be required to also recognize
human rights violations by all non-state actors, including corporations.211
Thus, while the previous negotiations have failed, there are some sources in which there has
been some sort of definition of terrorism. One of the sources is the UNSC Resolution 1566.212
204
Jörg Frierdrichs (n 196) 78.
205
ibid 79.
206
For discussion on this subject, see Mariona Llobet, ‘Terrorism: Limits Between Crime and War. The Fallacy
of the Slogan “War on Terror”’ in Aniceto Masferrer (ed), Post 9/11 and the State of Permanent Legal Emergency
(Springer 2012); Lisa Hajjar, ‘The Counterterrorism War Paradigm versus International Humanitarian Law: The
Legal Contradictions and Global Consequences of the US “War on Terror”’ (2019) 44 Law & Social Inquiry 922.
For instance, if it would be considered to be war, then individuals belonging to terrorism groups could in theory
commit legitimate actions which does not constitute war crimes, but could be seen as a terrorism act. Thus, the
different classification of the acts would engage different sources of international law.
207
208
ibid 79.
209
ibid 86–7.
210
Secretary-General, Larger Freedom (n 77) [91].
211
Alvarez (n 78) 168.
212
25
Here it is defined as a criminal act against civilians that is committed to harm people, either to
cause death or to cause serious bodily injury. The purpose behind the act should be to either
provoke a state of terror among the general public or to intimidate, compel either a government
or international organization to abstain or to do any act. It further adds the criteria that the
conduct should also constitute an offense under the previous international conventions on
terrorism. This act should never be justifiable based on philosophical, political, racial,
ideological, or religious natures.213 Thus, there is not any requirement of a special purpose
behind the act other than the requirement that it should create a state of terror or be compelling.
For this reason, there has been criticism for the definition in Resolution 1566, especially since
it is believed that it does not contribute to any solution to the previously mentioned problems.
Rather it has used an already agreed definition and is therefore called a ‘re-classification’. 214
Further, it is still not regarded to be an exhaustive list that would be required to fulfill the
principle of legality. It also does little to the contribution of the legal definition as it lacks a
sufficient legally-binding effect.215 It is legally binding in the sense that it imposes an obligation
upon the State to prevent this sort of attack from occurring, but it has side-stepped the treaty-
making process built on a consensus that should be conducted by the UNGA.216 Thus, adopting
a definition for a crime that should be implemented in the domestic jurisdiction could arguably
be regarded as the UNSC acting ultra vires which would invalidate the resolution and
consequently the definition.
Among the several conventions on the specific acts of terrorism, most of these leaves out the
word terrorism in the provisions.217 However, the Convention on the Suppression of the
Financing of Terrorism is an exception. It is most likely from this Convention that the UNSC
took its inspiration from in the Resolution as the definition in this puts most emphasis on the
state of terror in the population and the coercion of the government.218 This act would qualify
no matter what the purpose is.219 However, it still lacks the general applicability required as it
only applies in situations when someone contributes financially to these sorts of terrorism
activities. As argued by Margariti, it would not fulfill the principle nullum crimen sine lege if
it would be applied for criminal liability because it lacks the objective and subjective element.220
Further, there exists no evidence that this definition has been used by States to adopt a wider
definition of general terrorism crimes.221 It is also interesting to interpret the Preamble of the
Convention as it refers to ‘terrorism in all its forms and manifestations’ which could be why it
later wanted to adopt a flexible approach in Article 2.
213
ibid [3].
214
Saul, ‘Civilising the Exception: Universally Defining Terrorism’ (n 17) 86; Young (n 28) 45.
215
Young (n 28) 46.
216
Sir Michael Wood, ‘The Role of the UNSC Security Council in Relation to the Use of Force against Terrorists’
in Larissa van den Herik and Nico Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International
Legal Order: Meeting the Challenges (Cambridge University Press 2013) 325.
217
218
Article 2 of the Convention.
219
220
Stella Margariti, Defining International Terrorism: Between State Sovereignty and Cosmopolitanism (Springer
2017) 146–7.
221
26
The definition is similar to that of the UNGA Resolution 49/60 with its Declaration on Measures
to Eliminate International Terrorism.222 However, this also includes that the act should be
conducted for political purposes. The Declaration makes further reference to the need to codify
the issue and to strengthen the international cooperation on the matter.223 But in the next Draft
Convention, which was never adopted, the reference to a purpose, based on political reasons,
was not included.224 This was most likely to be able to avoid that the earlier difficulties with
the basic technical terms would hinder the attempts once again.225 However, the attempt might
not have been that successful as there is yet not an accepted definition.
In February 2011, the UN Special Tribunal for Lebanon’s Appeal Chamber claimed to have
found the customary international definition of the crime of transnational terrorism in its
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging.226 This definition is composed of three different elements:
(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking,

arson, and so on), or threatening such an act; (ii) the intent to spread fear among the
population (which would generally entail the creation of public danger) or directly
or indirectly coerce a national or international authority to take some action, or to
refrain from taking it; (iii) when the act involves a transnational element.227
In its reasoning, the Tribunal refers to the States who still insists for the exception of freedom
fighter that these should be considered as persistent objectors. It states that this objection is also
a breach of the obligations under the UN Charter and towards the UNSC as it hinders the
possible agreement of a definition.228 Further, as seen in the definition it has provided, it rules
out pure domestic terrorism as it requires a transnational element.229 This is also included in the
definition of the Convention for the Suppression of the Financing of Terrorism.230 Even if the
definition created by the Tribunal does not make any reference to political purposes, it states
that these are included as an intent element. By adding this to the definition, it believes that it
has the benefit of clarifying the scope of what can be charged as the international crime of
terrorism and that it is beneficial for the principle of legality. But it acknowledges that this
certain element is not yet as broadly accepted and can therefore not part form of the customary
rule but should be emerging ‘as an additional element of the international crime of terrorism’.231
222
UNGA Res 49/60 (17 February 1995) UN Doc A/RES/49/60.
223
ibid [12]. Similar resolutions with the same wording has after this been adopted. See for instance UNGA Res
64/118 (16 December 2009) UN Doc A/RES/64/118; UNGA Resolution 63/129 (11 December 2008) UN Doc
A/RES/63/129.
224
See UNGA, Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17
December 1996 (11 February 2002) UN Doc A/57/37, 6.
225
226
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative
Charging, (Special Tribunal for Lebanon, Appeals Chamber, 16 February 2011) Case No. STL-11-01/I.
227
ibid [85].
228
ibid [110].
229
ibid [90].
230
Arts 2(1)(b) and 3.
231
ibid [106].
27
Even if the Tribunal seems certain in its case that a customary rule exists, it has been argued
that there is not any sufficient evidence to confirm this. Even though specific terrorism actions
have transformed into customary law, the general transnational terrorism has not. This is
because State practice is inconsistent, there does not exist a consensus in opinio juris and the
whole subject is still too much debated for it to have created a customary prohibition.232 It has
been argued that the Tribunal has misinterpreted and exaggerated every source it used for its
interpretation.233 As for the regional conventions on terrorism, the definitions are also different
and can therefore not provide evidence for the customary definition.234 It is in these regional
definitions the fundamental disagreements on the international level are reflected, showing the
different presumptions on political violence.235
Neither can evidence of this be found in the practice of the UNSC and the UNGA.236 The mere
fact that the Ad Hoc Committee, whose purpose was to find a definition on terrorism, concluded
that it was impossible when there was such persistent disagreement between the States should
be evidence enough that it does not exist any custom in this regard.237 With that said, some
argue that this has supported the legitimacy of the judgment and that it might be set as a
precedent for the future development of the determination of an international definition of the
term.238
In addition to this, a case that might bring clarification on the matter is the current pending case
before the ICJ of Ukraine v Russia.239 Here the Court is asked over the Convention for the
Suppression of the Financing of Terrorism and if it is applicable for the actions taken by the
Russian troops in Crimea. While it mostly regards State terrorism, there will be interesting
impacts on how, or rather if, the ICJ will attempt to define terrorism. For its part, Ukraine has
argued for the essence of terrorism in which it states that there has been a target against civilians
with the purposes to intimidate the population and to compel a government.240 It will also be of
interest to see to what extent the Convention can be used in the question of state responsibility.
As Russia argues, it views it as only a ‘law enforcement instrument’.241
232
Saul, ‘Civilising the Exception: Universally Defining Terrorism’ (n 17) 81; Young (n 28) 65.
233
Ben Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an
International Crime of Transnational Terrorism’ (2011) 24 Leiden Journal of International Law 677, 679; Kai
Ambos, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International
Law’ (2011) 24 Leiden Journal of International Law 655, 665.
234
Saul, ‘Civilising the Exception: Universally Defining Terrorism’ (n 17) 82; Saul, Defining Terrorism in
International Law (n 13) 144.
235
236
ibid 191; Saul, ‘Civilising the Exception: Universally Defining Terrorism’ (n 17) 82.
237
UNGA, Report of the Ad Hoc Committee on International Terrorism (17 April 1979) UN Doc A/34/37 [91].
238
Margariti (n 220) 159.
239
Ukraine v Russia (n 150).
240
Case Concerning Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia)
(Written Statement of Observations and Submissions on the Preliminary Objections of the Russian Federation)
[2019] [252].
241
Ukraine v Russia (n 150) [43].
28
However, the case might not bring that much light to the issue. As expressed by the dissenting
opinion of Vice-President Xue regarding the preliminary objections, for the Court to establish
that Russia has breached the Convention, it has to decide on the nature of the conflict on Crimea.
That is, to declare if the acts were part of an armed attack that breaches humanitarian law, or if
it is acts of terrorism. To make this distinction is argued to be impossible.242 Further, Judge
Robinson declares that it is problematic that the Court has adopted a different interpretation of
the Convention and what is included under Article 2. As the Convention does not describe the
acts under Article 2 as terrorism, it is surprising that the Court does.243 This is why the Judge
believes that States will be questioning this reasoning and conclusion when the ICJ at the same
time does not develop on any exclusion of acts during struggles for independence or liberation
which is the causes for why no definition has been reached.244
The reasoning gives even more evidence to the problematic environment of application of these
Conventions without a clear definition of terrorism which could challenge the legitimacy of the
legislation. This shows that it is even of more importance that the ICJ attempts to reach a
conclusion on the matter in the merits, even if it is questionable if it would take such a risk
without finding evidence in neither practice nor conventions on a definition. That is if it does
not follow the reasoning of the Tribunal for Lebanon.
3.2.1. Is a Definition Needed?
Indeed, as seen in the introduction of this thesis, abuse of the labeling of terrorism occurs and
has taken place throughout history with a variety of methods.245 It is argued that a legal
definition would put constraints on this abuse.246 Michael Wood believes that it is overused and
that is a danger with this as there is not any legally satisfactory definition. Because of this lack
of a definition, the danger lays with the endless possibilities for the States to decide for
themselves who should be labeled as a terrorist. A decision that can be solely based on their
emotions at the time. Instead, he suggests that the crimes should be treated as ordinary crimes
in the domestic systems even if its international concern should be recognized in an
international convention. While he accepts the extraordinary circumstances of the 9/11 attacks,
he argues that this should be regarded as an armed attack and therefore be treated under the jus
ad bellum.247
Certainly, it would allow the international community a possibility to question the actions of
States through international mechanisms, but if the norm exists in customary international law,
it would be difficult to make the States agree upon the restrictive elements that should be
included. It does not seem likely that they would want restraints on these sorts of powers. But,
with the creation of a general convention on the suppression and prevention of terrorism, it
242
ibid Dissenting Judge Vice-President Xue [5].
243
ibid [63].
244
ibid Declaration of Judge Robinson [17].
245
Helolsa Tenello Bretas and Daniel Damasio Borges, ‘Counter-Terrorism Legislation and Terrorist Attacks:
Does Human Rights Have Space’ (2018) 15 Brazilian Journal of International Law 371, 372.
246
247
Wood (n 216) 320.
29
might be possible to influence the State practice in that way during the time. After all, it is
through the definition it will be possible to in a precise manner decide on what sort of actions
should be condemned and judged.248 It would certainly be more in line with the principle of
legality and it would engage international cooperation to tackle the crime.249 Especially as it
would make it clear what sort of support to a terrorist organization is unlawful as the whole
international community has agreed on the terms.250
It is also argued that the use of ‘terrorism’ in the public debate severely undermines the need to
tackle political violence as it is presented as a ‘special or unique phenomenon.’251 By classifying
it as terrorism, the policymaker contributes to the difficulties to tackle the underlying problem
which is needed to prevent it from taking place.252 It would be naïve to assume that the adoption
of a definition for terrorism would be completely deprived of any subjectivity. It is such a highly
debated subject that it will be impossible to create a definition with an objective calculation.
But it is said that this problem arises with every attempt to create a legal definition of an
international crime.253 To make this an excuse to not adopt a definition, would contribute to the
continuous misuse of the term. After all, it was already recognized in 1937 by the League of
Nations the danger of leaving out a definition as it would give the States unlimited power. The
failure of this has been called unfortunate as the international community was not able to
‘confront a virulent species of transnational crimes’. If the States would have agreed earlier, it
would have been able to make the international cooperation on the matter much more effective
compared to what it is today.254
This would also create a broader understanding of the term for the general public, which would
then be able to critically examine if the States are misusing the term and whether a certain act
really can be regarded as terrorism.255 It is of special importance as there are severe
consequences for the individual or group if they are labeled as terrorists. This labeling de-
legitimizes and dehumanizes the opposition.256 It also has the power to persuade others into
regarding the actors as illegitimate.257 Therefore, there are obvious benefits to creating
limitations of the use of the term.
It would also have limited the abuses of human rights if there would have been a clear definition
that contained limits on how the States could use the measures.258 Additional arguments for a
248
249
Boaz Ganor, ‘Defining Terrorism: Is One Man’s Terrorist Another Man’s Freedom Fighter?’ (2002) 3 Police
Practice and Research 287, 300.
250
ibid 289.
251
Jarrod Hayes, ‘Is the Concept of Terrorism Still Useful?’ (International Relations and Security Network, 23
January 2015) <https://www.files.ethz.ch/isn/187968/ISN_187180_en.pdf> accessed 3 November 2020.
252
ibid.
253
254
255
256
ibid 21.
257
Rumyana Grozdanova, ‘“Terrorism” - Too Elusive a Term for an International Legal Definition?’ [2014]
Netherlands International Law Review 305, 315.
258
Doswald-Beck (n 91) 140.
30
definition is that it will make the fight against terrorism much more coordinated and effective.259
Especially as it would clarify what are the international values and interests that need to be
protected in this fight.260 It would also contribute to the understanding of the causes of terrorism
which will contribute to effective prevention, and with a lesser impact on human rights than to
simply fight it with military means.261
But to simply leave out the definition, would have the consequence that the grave international
concern might be restricted as it would create even more difficulties for the International Court
of Justice (ICJ) to exercise jurisdiction over these sorts of cases.262 This is a very vital aspect
that would ensure that States’ overreactions would be more limited as the possibility to invoke
State responsibility would be easier.
Turning back to the UNSC Resolution 1373 where the States were left with the discretion to
for themselves decide on the definition, it has created a wide range of different definitions
among the domestic jurisdictions. This has had severe impacts, such as many countries'
legislation on counterterrorism has been contrary to human rights law.263 It has also been
extremely vague into what sort of situations it is applied for.264 Further, it lacks the exception
for democratic protest, and its indirect possible damage on a property, to not be classified as
terrorism offenses. These sort of actions does not have the intent to cause serious bodily harm
nor death which could be classified as public order offenses but should not be classified as
terrorism.265 It is in these sorts of gaps that the terrorists can coordinate and take advantage,
which makes it even more obvious that a definition is required.266
3.3. The Integration of Human Rights in the Current Counterterrorism Frameworks
In order to get the counterterrorism measures more in line with human rights, there could
potentially be a solution by integrating the two legal systems closely. As international human
rights allow for derogation during times of emergency,267 it is not problematic to implement
justifiable measures that might inflict human rights during a temporary time. However, the
problem arises when this becomes the new status quo and a permanent public emergency with
the power to change fundamental norms. Especially as it has not yet been proven that the less
protection of human rights in the preventative counterterrorism measures have prevented
terrorist attacks.268
259
Ganor (n 249) 288.
260
261
Andreas Armborst, ‘Countering Terrorism and Violent Extremism: The Security-Prevention Complex’ in
Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Second Edition, Hart 2019) 455.
262
Myriam Feinberg, ‘International Counterterrorism - National Secuirty and Human Rights: Conflicts of Norms
or Checks and Balances?’ (2015) 19 The International Journal of Human Rights 388, 392.
263
Report of the United Nations High Commissioner for Human Rights on the Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism (n 4) [20-3].
264
Saul, ‘The Legal Death of Rebellion: Counterterrorism Laws and the Shrinking Legal Freedom of Violent
Political Resistance’ (n 31) 333.
265
ibid 334.
266
267
Art 15 of the ECHR; Art 4 of the ICCPR.
268
Bretas and Borges (n 245) 374–5.
31
It is rather questionable how the threat of terrorism can be regarded as such an important matter
to invoke a permanent state of emergency permanently when three times as many in the US
died of malnutrition in 2001 than they did of a terrorist attack.269 This should put malnutrition
as the more severe threat to the right to life, compared to that of an anticipatory terrorist attack.
It might be explained regarding the symbolic randomness of terrorist attacks that have created
a common fear among the society that anyone can be the next victim. However, objectively
there is not a high chance of this.270 Neither does it exist any evidence that the terrorists can be
a direct threat to the foundations of Western society and its fundamental principles.271 But still,
even during the COVID-19 pandemic, the UNSC found it necessary to ask for a ceasefire in all
global fights except for the fight against terrorism.272
Instead, the threat of terrorism has had a graver impact on the fundamental values of democratic
societies than actual terrorist actions. To put human rights against security is wrong in many
ways. Security does not need to mean that human rights should not be respected, they should
not be put in a zero-sum relationship.273 Even if the States have the due diligence obligation to
prevent a terrorist attack from taking place, it does not require that the other human rights
obligations get diminished.274 But, the balance might be more difficult to establish if one
assesses the double side of the right to security. On the other hand, it is regarded as the
protection from the State, but it is also the right to receive State protection.275 In history, the
former thought has prevailed. It can be traced back to Hobbes who argued that humans will
want to trade away their liberties for the sovereign to offer full protection from war without
restrictions.276 Then came Locke with his belief that laws needed to exist that restricted the
sovereign’s power because only then the individuals would receive the benefit of security.277
The way to perceive security has thus been discussed for several years and both of these
perspectives can be seen in the international law regime. Whereas the principle of sovereignty
is still perceived as strong, but where it has been recognized that the States must protect the
individuals’ human rights. Hence, it is not surprising that the threat of terrorism has had the
power to wake this debate to life once again. After all, it is recognized that terrorism could have
the power to challenge the very fundamental bases of democracy, while at the same time, this
power proves the importance to maintain these bases.278
269
Michaelsen (n 130) 301.
270
Bretas and Borges (n 245) 372.
271
Andrew O’Neil, ‘Keeping the Contemporary Threat Environment in Perspective’ (Australian Review of Public
Affairs, 31 May 2004) <http://www.australianreview.net/digest/2004/05/oneil.html> accessed 15 October 2020.
272
UNSC Res 2532 (1 July 2020) UN Doc S/RES/2532.
273
Monshipouri (n 5) 3.
274
White (n 146) 187; Doswald-Beck (n 91) 127.
275
Liora Lazarus, ‘The Right to Security’ in Rowan Cruft, S Matthew Liao and Massimo Renzo (eds),
Philosophical Foundations of Human Rights (Oxford University Press 2015) 423.
276
Thomas Hobbes, Leviathan (Michael Oakeshott 1651) Ch XIII [4].
277
John Locke, Two Treaties of Government (Awnsham Churchil 1689) [137].
278
Feinberg (n 262) 389.
32
With that being said, in human rights discussions, it is usually accepted that human rights are
today regarded as universal. As stated by Monshipouri, ‘without universality, human rights are
nothing but hollow rhetoric.’279 Human rights should thus be applied to every individual no
matter what their nationality or religion is.280 To allow security-based arguments precedence
over this opens up the possibility for abuse by governments. For instance, it has been claimed
that an individual should not have the possibility to complain of human rights interference when
it is necessary to uphold others’ right to security.281 These sorts of rhetoric reflect the
justification arguments seen in places such as North Korea or the Middle East.282 To use the
claim that it does it based on the right to security, have enabled them to expand their power.
This is why it is important that the right to security, or at least the language of it, is limited.283
As recognized by the HRC, not every disturbance in society can be qualified as a public
emergency that poses a threat to life.284
It is when the State makes claims for their strong identity while struggling with the upholding
of respect for human dignity and the legality that the terrorists win.285 The difficulties to
determine what the right to security should contain gives rise to the concerns that the rule of
law is infringed on as it mostly lacks clarity and transparency. Further concerns are raised as to
if the coercive action taken is even legitimate. If the leader disguises it with a claim that it does
it based on the right to security, little questions will be asked which is exactly what it takes
advantage of.286 Indeed, there might be truth to the argument that the most successful
counterterrorism lays with an element of surprise.287 The terrorists should not be aware of what
is coming. But it is problematic when this element of surprise is founded on legislation that
does not fulfill the requirements of the principle of legality. After all, it is argued that it is the
protection of the rule of law and human rights that are the most successful counterterrorism
measure.288 Without this, a climate will be created in which more terrorists will be able to be
produced.289 Thus, it is of most importance to have derogations from human rights obligations
in line with the rule of law.290
279
280
Lyndsey Harris and Rachel Monaghan, ‘Ethics and Human Rights in Counterterrorism’ in Andrew Silke (ed),
Routledge Handbook of Terrorism and Counterterrorism (Routledge 2018) 485.
281
Lazarus (n 275) 434.
282
ibid 437.
283
Victor Tadros, ‘Rights and Security for Human Rights Sceptics’ in Rowan Cruft, S Matthew Liao and Massimo
Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) 446.
284
UN Human Rights Committee, General Comment No. 29 (31 August 2001) UN Doc
CCPR/C/21/Rev.1/Add.11.
285
286
Lazarus (n 275) 436.
287
288
289
Louise Richardson, ‘The Roots of Terrorism: An Overiview’ in Louise Richardson (ed), The Roots of Terrorism
(Routledge 2006) 9.; UNGA and UNSC, Identical Letters Dated 1 August 2002 from the Secretary-General
Addresed to the President of the General Assembly and President of the Security Council (6 August 2002) UN
Doc A/57/273 - S/2002/875 [26].
290
33
As previously stated, the States act as if it is impossible to find a balance between the different
obligations and that it only has one available choice.291 However, if a State uses this tactic and
adopts a strategy based on brutal repression, does it not become as bad as the terrorists? It could
be argued that the terrorists have won simply by exposing this battle. The fight against terrorism
has shown this moral high ground battle where it drags the legitimate power into the gutter.292
Therefore, it is justifiable to question why these two concepts have come into conflict,
especially when it is already acknowledged that they both are needed to be fundamentally
protected.293
One attempt to solve this sort of dilemma for the decision-maker, where it has to both protect
the law and the public,294 is the adoption of ‘human security’. By arguing that their
counterterrorism actions are based on their obligation to prevent and respect human security,
they have found a justification that has been accepted by not only the international community
but also by its populations.295 Further, the need for international cooperation when combating
terrorism is essential to respect.296 While assessing the conflict between the different interests,
it might be sufficient to recall the pressure put on the States with State responsibility.
The evidence of judgments from the human rights courts would show that the States should
fear review over its human rights compliance. But as the rhetoric of powerful States shows, that
you are either with us or against us, it is rather difficult to see that a State would choose to be
regarded as the black sheep that did not take all of its available measures against the terrorists
nor to allow for the safe haven of potential terrorists. On the other hand, to use too excessive
measures will also be faced with criticism and might damage the legitimacy of the actions. For
instance, the US has faced this sort of criticism with its War on Terror.297
While the merits of the case Ukraine v Russia has not been decided yet, which would potentially
bring some attention to non-compliance with counterterrorism measures, it is interesting to
assess what sort of measures is available for non-compliance with the UNSC resolutions. The
first measure adopted by the UNSC to ensure that States comply with its counterterrorism
demands is the Counter-Terrorism Committee (CTC) under the leadership of the Counter-
Terrorism Committee Executive Directorate.298 It is a rather active body that issues yearly
reports on recent terrorist threats and that visits the Member States to assess how it has complied
with the resolutions. In its most recent document, it sets up the guidelines for the following
visits and states that it aims to assess how these counterterrorism strategies have been
implemented to comply with other aspects of international law, such as human rights
291
292
Cooper (n 199) 891.
293
294
Amos N Guiora, ‘Due Process and Counterterrorism’ (2012) 26 Emory International Law Review 163, 163.
295
296
Michael A Newton, ‘Terrorist Crimes and the Aut Dedere Aut Judicare Obligation’ in Larissa van den Herik
and Nico Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the
Challenges (Cambridge University Press 2013) 73.
297
Roach (n 186) 194.
298
Established by the UNSC Resolution 1373 (n 28) and further guided by UNSC Res 1624 (14 September 2005)
UN Doc S/RES/1624.
34
obligations.299 However, it is not ensured that the practice of the CTC actually will make a
difference. Instead, it is believed that it creates more difficulties as its views are not transported
well into the well-established domestic counterterrorism regimes.300 This together with the
problem that the UNSC has started lacking legitimacy and creditability in its counterterrorism
strategies, makes it difficult to see how this can make a difference in the balance between the
different obligations.
Further developments created by the UNSC is the Ombudsperson. While this is ‘not the ultimate
decision-maker on delisting’,301 it has been adopted as a response from the concern of the
fairness of the Sanctions regime.302 At the time, it has heard 93 cases.303 The biggest obstacle
for the mechanisms is the fact that the evidence needed is usually guarded by secrecy. The
Ombudsperson has the opportunity to request the State to transfer the evidence as it has
concluded different agreements between the States for cooperation.304 But even if the
Ombudsperson receives the evidence, the petitioners do not have access to this and neither to
the final reports issued by the Ombudsperson.305 This is criticism that has been stated by the
former Ombudsperson, as well as criticism towards whether or not it is to be regarded as
independent.306
As it seems, the attempts to solve the conflict in the current framework have been unsuccessful.
The discretion is still left to the State to delicately assess how to make the resolutions effective
while at the same time protecting the individuals’ rights. The more terrorist attacks that will
occur, the more likely it is that the States will become even more desperate to show strength,
resulting in an even greater impact on human rights. This claim is supported by the shift of the
counterterrorism measures after 9/11, making it desirable to fundamentally change the system
for a more sustainable approach.
3.4. The Adoption of a New Convention
As stated previously, the aim of this thesis is not to make claims that counterterrorism is
unnecessary and that this should be destructed. Instead, the aim is to search for a solution to
this conflict. There exist discussions on the available mechanisms, but not as much on how to
make it more sustainable. The system of freezing assets is now a well-established practice by
the States, even if it still is questionable how it is suitable for human rights protection. The more
299
UNSC, Letter dated 21 July 2020 from the Chair of the Security Council Committee Established Pursuant to
Resolution 1373 (2001) Concerning Counter-Terrorism Addressed to the President of the Security Council (21
July 2020) UN Doc S/2020/731, 5.
300
Alvarez (n 78) 177.
301
302
Roach (n 186) 197.
303
UNSC, ‘Status of Cases’ (UNSC) <https://www.un.org/securitycouncil/sc/ombudsperson/status-of-cases>
accessed 3 December 2020.
304
UNSC, ‘Access to Classified Information’ (UNSC)
<https://www.un.org/securitycouncil/ombudsperson/classified_information> accessed 5 December 2020.
305
Roach (n 186) 198.
306
UNSC, Letter Dated 13 July 2015 from the Ombudsperson to the President of the Security Council (14 July
2015) UN Doc S/2015/533 [40] and [61].
35
recent developments in data collection show how the field is developing even if this is also
questionable from a human rights perspective. Thus, it is obvious that more efforts need to be
put into incorporating human rights protection in the available counterterrorism mechanisms.
Especially with the long-lasting effects counterterrorism have on human rights protection. The
biggest problem that seems to exist in the current counterterrorism strategy is the lack of a
coherent definition and the availability of judicial review of the measures. Thus, it can be
concluded that the biggest problem is discretion. Therefore, this section of the thesis will
examine whether this problem could be solved by the adoption of a comprehensive convention
on the prevention and suppression of terrorism.
As it has been recognized that counterterrorism has emerged as a whole new field of
international law, in which it touches upon a wide range of different policies, such as
international human rights law, international humanitarian law, and migration to just mention
a few.307 Thus, to have a better and sustainable approach, a fundamental change needs to take
place. Evidence for this argument exists. It has been acknowledged by the Chair of the 1267
Committee that the delisting decision is still ‘a political decision based on a political process’.308
This, together with the fact that its effectiveness might be questioned as there is no evidence
for this, proves that the system might need to be abolished altogether. Especially when it is put
in perspective of the potential costs the system has on the legitimacy of the UNSC when it so
clearly goes against some of the most fundamental human rights.309 As new threats occur, it
should be acknowledged that there is a need to fundamentally change the system, not only for
the protection of human rights but also to create a more efficient system for the prevention of
terrorism.
It could be argued that the lack of a convention that sets out the limits for counterterrorism and
that defines the crime with its applicable law, allows States to much discretion in their
classification of the crime. As argued by Bickerton, States can create a perspective wear the
suspected terrorist is seen as an ‘enemy combatant’ which allows them to use very extreme
laws of war. This situation creates the possibility for the State to set aside its human rights
obligations while arbitrarily detained an individual without sufficient evidence nor any official
charge of crime.310 Thus, it provides a gap in existing international law where the State is
allowed to pick and choose what areas it finds sufficient to apply.
By adopting a new convention, there will be a great acknowledgment that the international
community has reached a consensus on the view that terrorism is an international crime. To
classify it as this will show that it contains such grave international concern that it cannot be
for the domestic exclusive jurisdictions to deal with this extraordinary crime. This would indeed
require that a clear definition exists which contains all the special elements of the crime and
307
Crelinsten (n 41) 363.
308
UNSC, ‘Press Conference on Security Council Al-Qaida and Taliban Sanctions Committee | Meetings
Coverage and Press Releases’ (2 August 2010) <https://www.un.org/press/en/2010/100802_Sanctions.doc.htm>
accessed 7 December 2020.
309
310
Jack Bickerton, ‘The War on Terror as a War on Human Rights: Should Preventive Detention Be Used as a
Counterterrorism Mechanism against Suspected Terrorists?’ (2020) 11 King’s Student Law Reveiw 1, 3.
36
that leaves little discretion for the States to abuse it, and it would limit the power of the UNSC
as it would not be possible to determine who is regarded as a terrorist on a case-by-case basis.
311
It would be beneficial as a legal constraint.312 Further, it would fulfill the human rights
principle of nullum crimen nulla poena sine lege which requires that the crime is clearly defined
and regulated by the law.313
But this adoption of a definition needs to be conducted with a clear assessment of the risks it
contains. It would be naïve to assume that it would create the solution to the problem. Indeed,
the States have their definitions of terrorism in their legal systems, but this has not hindered
them from abusing it during times of emergencies. This problem has led some to the argument
that instead, the main focus should be on the understanding of the root causes of terrorism to
be able to prevent it from occurring.314 Undoubtedly, this is of great concern, but this will not
help when the terrorist act has occurred as it would lack sufficient safeguards to constrain the
countermeasures taken by the State.315
To argue that the UNSC should provide for the definition through one of its resolutions is not
a preferential solution. It would lack the consensus required. Further, by assessing the
permanent members of the UNSC it is rather obvious that it might not have the strongest support
for human rights protection judging by their attitudes.316 Instead, the whole of the international
community should be consulted to find a fair solution and to avoid further criticism that it is
based on a Western-dominated process.317 This would also contribute to a counterterrorism
strategy not based on discrimination. As it is now, it is most active against Islamic extremists
which have helped in terrorist groups recruitment as it is easier to sell an idea that the West is
against Muslims.318
Further, the convention should include the obligation to prevent it. Here the basis could
potentially be the upcoming judgment by the ICJ, otherwise, it might be possible to use the
same requirements as seen in the Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention).319 However, it should not require that a large-scale
terrorist act occurs to be able to hold a State accountable. Thus, the threshold might not be set
as high as that of the Genocide Convention. This also highlights the need to ensure that the
States contribute to a safe society in which the rule of law and human rights are protected as
this is the most effective way to ensure that terrorism does not occur. 320 It is through this way
311
Wood (n 216) 332.
312
Grozdanova (n 257) 319.
313
Kokkinakis v Greece App no 14307/88 (ECtHR 25 May 1993) [52]
314
315
316
Saul, ‘The Legal Death of Rebellion: Counterterrorism Laws and the Shrinking Legal Freedom of Violent
Political Resistance’ (n 31) 340.
317
Martti Koskenniemi, ‘What is International Law For?’ in M Evans (ed), International Law (OUP, Oxford,
2003) 89, 95–96.
318
319
Convention on the Prevention and Punishment of the Crime of Genocide, (adopted 9 December 1948, entered
into force 12 January 1951) 78 UNTS 277.
320
Tore Bjørgo and Andrew Silke, ‘Root Causes of Terrorism’ in Andrew Silke (ed), Routledge Handbook of
Terrorism and Counterterrorism (Routledge 2018) 57.
37
the international community can ‘reduce the fear, as well as the effects, of terrorism’.321 This
should also include provisions on how to counter extremism that might be regarded as a
potential terrorism threat if it is allowed to escalate into violence.322
In addition to this, it is important that accountability mechanisms, both for the terrorists and the
States, exists in the new convention. For instance, it is argued that an international court would
be the most preferential to safeguard fair trials as domestic systems might demand
vengeance.323 Human rights treaties and counterterrorism measures are similar to the extent that
they both entitle the States self-policing to achieve the obligations, but counterterrorism
measures lack the same quasi-judicial tribunals or committees that human rights treaties have
created for the supervision.324 Thus, a similar solution could be created for counterterrorism
mechanisms or the improvement of the Ombudsperson without the obstacles of secrecy and
with an extended mandate.
Further, a similar system to that of the International Criminal Court could be implemented, but
it would mean that only the most responsible for the act will be prosecuted at the international
level, leaving a big responsibility for the States to prosecute the others. Even if this is also
necessary to highlight the graveness of the terrorism act, it requires that the convention enables
safeguards for the domestic jurisdiction also. In this aspect, the domestic systems must become
more familiar with the transnational elements of the crimes that they have earlier struggled
with.325 The States should also be able to be held accountable under the convention which would
most certainly limit its scope of discretion on the matter. It has been argued that publicity and
critique have been effective in this aspect,326 however, this does little for the individual whose
right has been abused. Especially if it wants reasons for the decision. As El-Masri stated after
his unlawful detention by the CIA in …: ‘I want to know why America harmed me. I don’t
understand why the strongest nation on Earth believes that acknowledging a mistake will
threaten its security.’327 Thus, jurisdictional accountability measures should be required.
To have the counterterrorism measures based on a treaty rather than a UNSC resolution would
also make interpretation of the provisions easier. The rules of VCLT would apply which would
make it much more effective for both the interpretation, but also to invalidate certain parts of
the measures that might come in conflict with jus cogens or other treaty provisions.
Counterterrorism would not be regarded as a specific field of actions created by the UNSC but
as part of the usual hegemonic of law. It would thus fit better within the usual pattern of
invoking State responsibility and judicial review.
321
White (n 146) 181.
322
Armborst (n 261) 460.
323
324
Mark D Kielsgard, ‘Counter-Terrorism and Human Rights: Uneasy Marriage, Uncertain Future’ (2013) 19
Journal Jurisprudence 163, 167.
325
Roach (n 186) 184–5.
326
ibid 182.
327
Khaled El-Masri, ‘I Am Not a State Secret’ (Los Angeles Times, 3 March 2007)
<https://www.latimes.com/news/la-oe-elmasri3mar03-story.html> accessed 2 December 2020.
38
As it is a transnational problem, many States do endorse the idea of creating a convention on
the matter.328 The key to the solution of the problems with the current counterterrorism
measures is found at the legislature. It is only through this mediation that these injustices can
be combatted.329 It possesses the key to influence politics into including accountability and
transparency, which is needed to have effective counterterrorism measures. After all, it is the
counterterrorism measure that is the first challenge to the rule of law, and not the terrorism act
itself.330 A convention would also enhance international cooperation in the field. This is of
extreme importance as a collective action is usually much more effective and wiser compared
to that of individual decisions.331 As it is now, international cooperation is rather ineffective
mostly because of the problem with secrecy. Because of this, it is also difficult to expect that
there will be international cooperation concerning accountability.332
As soon as it becomes accepted that human rights can be circumvented during these situations,
it could create a situation where it is routinely applying those sorts of measures.333 Thus, the
protection of human rights is also required to be included in the convention. These will be much
easier to protect with the definition of terrorism as it will limit the ability to use police powers
based on counterterrorism in situations that do not fall within the ambit of terrorism, as against
the political opposition.334 Even if the convention, like any other international convention, will
remain to some extent flexible in its application, there should at least be some sort of coherent
parameters in the applicable law that will fulfill the requirements of legal predictability and the
rule of law.335
328
Young (n 28) 25.
329
Laura K Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press
2008) 359.
330
331
Wood (n 216) 317.
332
Roach (n 186) 196.
333
Harris and Monaghan (n 280) 489.
334
Young (n 28) 27.
335
Duffy (n 12) 493.
39
4. Conclusion
As has been established in this thesis, the current counterterrorism measures have been created
by the UNSC through its adoption of different resolutions. This has been problematic for
various reasons. Firstly, States have been left with much discretion that has caused human rights
violations when they have implemented the measures. While the courts have established that a
violation has occurred, there have been different methods to conclude who should be held
accountable. If it is found that the UNSC has had effective control over the UNSC resolution,
the State will not be held responsible. But for the counterterrorism measures, it has been found
that the State is responsible as it governs the implementation of the resolution and therefore has
the responsibility to ensure its conformity with human rights. However, there have also been
some tendencies to rule that Article 103 of the UN Charter prevails over human rights which
has the consequence that the individual will not be granted any effective remedies for human
rights violations. Nevertheless, it has also been found a common presumption that the UNSC
would never have intended that its resolutions would infringe human rights. This has resulted
in the ruling that the State will be held responsible if it does not implement the resolution in
conformity with human rights.
Secondly, it has not been any available mechanisms to review the legality of the resolutions of
the UNSC causing further difficulties in the understanding of to what extent it applies. While
the judgments have influenced the UNSC to create new mechanisms to ensure some judicial
protection, such as the Ombudsperson, there is still a problem with secrecy as the
Ombudsperson is dependent on the States' cooperation to share its evidence. There is neither
an assurance that the individual will get the possibility to review the evidence which is required
in order to defend oneself. The criticism against the counterterrorism mechanism has the
potential to further damage the legitimacy of both the States and the UNSC fight against
terrorism. It has the potential to undermine the fundamental principles of a peaceful society as
the means might not be proportional to the ends. Thus, counterterrorism has had a more
damaging effect on the enjoyment of human rights compared to the terrorism itself.
Consequently, a fundamental change should take place. This is what this paper has attempted
to establish. By assessing three different possible solutions to the conflict between human rights
and counterterrorism, it has aimed to answer whether the current strategies can be improved or
if it is required to establish a new convention. There is much evidence to invalidate Resolution
1373 as a source for counterterrorism measures. Mainly as it does not fulfill the principle of
legality when it does not provide a clear and precise framework that limits the powers of the
State and it does not offer sufficient judicial safeguards for the individuals affected by the
Sanctions Regime. A definition of terrorism would certainly limit the discretion of the State,
but this would be required to be adopted through a new convention to fulfill the principle of
democracy. This is the most beneficial finding for human rights protection as it would make
the States bound by a clear and precise law during its counterterrorism activities with a limit on
discretion. Consequently, it would enhance international cooperation while at the same time,
benefit the prevention of further terrorism.
40
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The Conflict Between Counterterrorism and Human Rights The Search For The Solution

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JURIDICUM

The Conflict between Counterterrorism and Human Rights

RV101A Rättsvetenskaplig Masterkurs med Examensarbete, 30 högskolepoäng

Examinator: Erika Lundell

CTC Counter-Terrorism Committee

ECHR European Convention on Human Rights

ECJ European Court of Justice

ECtHR European Court of Human Rights

HRC United Nations Human Rights Committee

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ILC International Law Commission

UN Charter Charter of the United Nations

UNGA United Nations General Assembly

UNSC United Nations Security Council

VCLT Vienna Convention on the Law of Treaties

1.1. Purpose and Research Question

1.2. Method and Material

It is also delimited to the focus on international legislation on counterterrorism. Hence, it will

2.1. The International Law

2.2. The Case Law

2.2.1. The Impacts of the Case Law

3.1. Resolution 1373

3.1.1. The Powers of the UNSC

3.1.2. The Validity of Resolution 1373

3.2. Defining Terrorism as a Means to Limit States’ Discretion

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking,

3.2.1. Is a Definition Needed?

3.3. The Integration of Human Rights in the Current Counterterrorism Frameworks

3.4. The Adoption of a New Convention

International Convention for the Suppression of Terrorist Bombings (adopted 15 December

International Convention for the Suppression of the Financing of Terrorism (adopted 9

United Nations, ‘Statute of the International Court of Justice’ (1946)

Al-Jedda v UK, App no 27021/08 (ECtHR, 7 July 2011).

Behrami v France App no 71412/01 (ECtHR 2 May 2007)

European Commission v Kadi C-584/10 (ECJ, 30 September 2010)

Her Majesty’s Treasury v. Mohammed Jabar Ahmad [2010] UKSC 2

Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,

Kokkinakis v Greece App no 14307/88 (ECtHR 25 May 1993)

Nada v Switzerland, App no 10593/08 (ECtHR 12 September 2012).

Sayadi and Vinck v Belgium (29 December 2008) UN Doc CCPR/C/94/D/1472/2006

UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244

UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267

UNSC Res 1269 (19 October 1999) UN Doc S/RES/1269

UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333

UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373

UNSC Res 1456 (20 January 2003) UN Doc S/RES/1456

UNSC Res 1511 (16 October 2003) UN Doc S/RES/1511

UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540

UNSC Res 1546 (8 June 2004) UN Doc S/RES/1546

UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566

UNSC Res 1624 (14 September 2005) UN Doc S/RES/1624

UNSC Res 1904 (17 December 2009) UN Doc S/Res/1904

UNSC Res 1989 (17 June 2011) UN Doc S/RES/1989

UNSC Res 2178 (24 September 2014) UN Doc S/RES/2178

UNSC Res 2253 (17 December 2015) UN Doc S/RES/2253

UNSC Res 2368 (10 July 2017) UN Doc S/RES/2368

UNSC Res 2396 (21 December 2017) UN Doc S/RES/13966

UNSC Res 2462 (28 March 2019) UNSC S/RES/2462

UNSC Res 2482 (19 July 2019) UN Doc S/RES/2482

UNSC Res 2532 (1 July 2020) UN Doc S/RES/2532

International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising