J U R I D I C U M
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
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
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
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.
7Al 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.
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).
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).
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.
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.
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].
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.
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].
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.
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.
67Her Majesty’s Treasury v. Mohammed Jabar Ahmad [2010] UKSC 2. 68 Al-Jedda v UK, App no 27021/08 (ECtHR, 7 July 2011).
69 UNSC Res 1511 (16 October 2003) UN Doc S/RES/1511. 70 Al-Jedda v UK (n 68) [83].
71 ibid [106-8]. 72 ibid [102].
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 Al-Jedda v UK (n 68) [102].
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.
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].
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].
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.
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
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.
128Ahmed 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.
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.
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].
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 Olivier (n 127) 408. 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 Olivier (n 127) 408. 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.
