Terrorism in International Law
4. The New UN Strategy of Combating Terrorism
4.3. The Role of the UN Security Council
Speaking about the suppression of terrorism, the broad powers con- ferred to the Security Council by the UN Charter concerning the mainte- nance of international peace and security were initially dramatically un-derused. The major impediments to the greater activity of the UNSC were ideological and political divisions among its members, so idiosyncratic in the period of the Cold War.73 The activities of this body did not go beyond the issuing of political declarations condemning terrorism and the urg-ing of states to put in place relevant measures to combat it. In the 1990s,
70 Cf. „Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996,” Fifth session (12-23 February 2001), General Assembly, Official Records, Fifty-sixth session, supplement No. 37 (A/56/37), New York 2001, p. 13.
71 Cf. „Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996,” Sixth session (28 January-1 February 2002), General Assembly, Official Records, Fifty-seventh session, supplement No. 37 (A/57/37), New York 2002, p. 17.
72 Cf. „Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996,” Seventh session (31 March – 2 April 2003), General Assembly, Official Records, Fifty-eighth session, supplement No. 37 (A/58/37), New York 2003, p. 9.
73 Cf. Osman, M. A. The United Nations and Peace Enforcement. Wars, Terrorism and Democracy, Ashgate 2002, p. 119, Saul, B. “Definition of �Terrorism’ in the UN Security Council: 1985-2004,”
CJIL 1 (2005), p. 143.
The New UN Strategy of Combating Terrorism the UNSC engaged in the adoption of several resolutions in which, under Chapter VII of the UN Charter, it imposed sanctions on countries engaged in terrorist activities.74
However, the attacks of 11 September 2001 in the USA brought about a dramatic change. In the aftermath of the New York events, the UNSC exercised its right to issue decisions legally binding on all the UN mem-ber states and introduced several new measures against terrorism, aimed at expediting international cooperation and correspondence of domestic laws. Among the most noteworthy documents, there is resolution 1373 (2001) adopted on 28 September 2001, which lays heavy emphasis on counteracting the financing of terrorism. Under the resolution, all states were obliged to, among others, prevent and suppress the financing of ter-rorist acts, freeze funds of persons who participate in terwere obliged to, among others, prevent and suppress the financing of ter-rorist activity, prohibit the making of such funds available to such persons, suppress the recruitment of members of terrorist groups, deny safe haven to those who finance, plan, support, or commit terrorist acts, prevent the movement of terrorists by effective border controls and controls on issuance of identity papers and travel documents.
Several provisions of the resolution require the UN member states to thoroughly review internal legislation and take legislative action to im- plement them into national law. In two cases, there are explicit require-ments related to criminal law. In paragraph 1(b), UNSC resolution 1373 (2001) makes all states criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their ter- ritories with the intention that the funds should be used, or in the knowl-edge that they are to be used, in order to carry out terrorist acts. What follows, the ordinary legislator is compelled to introduce into its penal code or a special act a new type of offence. Therefore, it is not sufficient to regard such a conduct as a preparation or a form of collaboration in the commission of a prohibited act under the regulations relating to money laundering.75
The need to adjust criminal law to the standards set out in UNSC reso-lution 1373 (2001) also arises from the obligation contained in paragraph 2(e), namely to ensure that the acts of participating, financing, planning,
74 Cf. UNSC resolutions: 748 (1992) (on Libya), 1054 (1996) (on Sudan), 1269 (1999) and 1333 (2000) (on the Taliban in Afghanistan). The texts of the UNSC resolutions after: www.un.org/
terrorism/sc-res.shtml
75 As in Bianchi, A. „Assessing the Eff ectiveness of the UN Security Council’s Anti-terror- As in Bianchi, A. „Assessing the Effectiveness of the UN Security Council’s Anti-terror-ism Measures: The Quest for Legitimacy and Cohesion,” EJIL 5 (2006), pp. 893-894.
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Terrorism in International Law
preparation or perpetration of terrorist acts or in supporting terrorist acts are established as serious criminal offences in domestic laws and regula- tions and that the punishment duly reflects the seriousness of such terror-ist acts.
The special nature of UNSC resolution 1373 (2001) is also worth noting.
First, the measures it introduces are not limited in time or by territory, but apply to the phenomenon of international terrorism at large. Second, it is the first instance of the UN states being encumbered, based on Chapter VII of the UN Charter, with such broad responsibilities of adjusting domestic laws to the requirements of a resolution.76 The exercise by the UNSC of such powers was possible through the assumption that any act of interna-tional terrorism constitutes a “threat to international peace and security,”
and thus extraordinary measures are sought in such extreme circumstanc-es. Third, the UNSC resorted to quasi-legislative means77 that supplanted the conventional process of sovereign assumption of obligations by the states through international agreements. In point of fact, this results in the effective reduction of the number of negotiators of the legal text binding on the entire international community to 15 members of the UNSC. While the literature on the subject voices major reservations about this practice, it also underlines its general acceptance by the UN member states.78
Of a similarly “law-making” character is UNSC resolution 1540 (2004) of 18 April 2004, which obliges states to take preventive action against proliferation of weapons of mass destruction.79 Pursuant to paragraph 2 of the resolution, all states should adopt and enforce appropriate effective laws which prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them.
76 Ogonowski, P. „Rezolucja 1373 Rady Bezpieczeństwa ONZ w sprawie zwalczania terro-ryzmu międzynarodowego i jej wykonanie,” PiP 3 (2003), p. 73.
77 Cf. Kirsch, N. „The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council,” in: Terrorism as a Challenge for National and International Law:
Security versus Liberty? Walter, C., Vöneky, S., Röben, V., Schorkopf, F., eds., Springer 2004, pp.
883, 884, Sandoz, Y. Lutte contre le terrorisme, p. 329, Tercinet, J. “Le Conseil de Sécurité et le ter-rorisme,” in: Terrorisme et sécurité internationale, Brussels 2005, pp. 63-67.
78 Cf. Bianchi, A. Assessing the Effectiveness, p. 917.
79 Cf. Handzlik, M. „Społeczność międzynarodowa wobec zagrożenia terroryzmem i pro-liferacją broni masowego rażenia,” in: Terroryzm. Anatomia zjawiska, Liedel, K., ed., Warszawa 2006, pp. 115-118.
The Problem of Jurisdiction of the International Criminal Court UNSC resolution 1624 (2005) adopted on 14 September 2005 attends to the issue of freedom of expression in the case of incitement and encourage- ment to carry out a terrorist act. It requires states to prohibit by law the in-citement to commit a terrorist act or acts (paragraph 1(a)), to prevent such conduct and deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct (paragraph 1(b-c)). Further-more, in this resolution the UNSC pointed to the necessity to include in its implementation process the obligations imposed by international law and standards of human rights, which, it seems, should be understood as a confirmation of the existing boundary impenetrable for the ordinary legislator and intended to frustrate an excessive and unjustified muzzling of freedom of expression.