On 24 September 2014, the UN Security Council passed a resolution under Chapter VII regarding foreign terrorist fighters.
The UN Security Council is making it obligatory for UN member states to change their domestic criminal law. The conduct criminalized in the draft text includes attempts to travel abroad “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”, gathering funds to assist such travel, or other facilitation of such travel. At least three aspects of such a resolution are noteworthy.
First, one might note that the Security Council has again proven itself to be rather innovative, to put it positively, or imperious, to put it more negatively. When creating the Security Council’s extensive powers, it is unclear that the framers of the U.N. Charter had in mind such actions as commanding the production of domestic law. These innovations are much more frequent since the end of the Cold War. It will be interesting to see if they continue. The commandment to states to issue domestic criminal legislation is remarkable in itself, although not unprecedented – see for example UNSC resolution 1373 (2001), which mandated that those financing, planning, preparing or perpetrating terrorist acts are “brought to justice.” Despite precedent, this action is near the outer limit of the UNSC’s remit.
Second, the core criminal conduct (terrorism) is rather separated from the conduct that the Security Council would criminalize. It is not addressing an act of terrorism (itself variously defined in international law), but rather, at the outermost, facilitating the travel of others (in a non-monetary and perhaps non-essential manner) to receive training that could potentially used to commit an unspecified act of terrorism sometime in the future. It is hard to imagine this type of inchoate and/or accessorial liability for core criminal conduct other than terrorism.
Third, the mens rea appropriate for the conduct is somewhat unclear from the text. Take “the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training[.]” So the “facilitation” must be “wilful”, but what exactly must be willed? The travel? The travel for the purpose of receiving certain training? The travel for the purpose of receiving training which is itself undertaken for the purpose of committing acts which are terrorist acts because of the intent behind those acts? Is there a specific intent requirement? What is it? How might this be implemented by states whose human rights record is less than stellar?
Expansion of government power in a situation of legal vagueness and fear is a recipe for abuse. The UN Security Council should act to manage the problem of transnational terrorism, but it should also do what it can to limit the damage to civil liberties that counter-terrorism efforts so often cause.
Photograph: all credits to Stefano Corso, 23 february 2005