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Home EJIL Analysis UN Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters

UN Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters

Published on September 24, 2014        Author: 

The Security Council, in a special sitting in which most members were represented by their heads of state or government and chaired by President Obama, has just unanimously adopted resolution 2178 (2014) on foreign terrorist fighters. Full text available here and here. The resolution is one of the most important quasi-legislative efforts of the Council since resolution 1373 (2001). Adopted under Chapter VII, it requires states to take a series of measures to prevent the movement and recruitment of foreign terrorist fighters. Some of the key operative paragraphs include:

5. Decides that Member States shall, consistent with international human rights law, international refugee law, and international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping 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, and the financing of their travel and of their activities;

6. Recalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:

a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories 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;

b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance 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; and,

c) 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;

7. Expresses its strong determination to consider listing pursuant to resolution 2161 (2014) individuals, groups, undertakings and entities associated with Al-Qaida who are financing, arming, planning, or recruiting for them, or otherwise supporting their acts or activities, including through information and communications technologies, such as the internet, social media, or any other means;

8. Decides that, without prejudice to entry or transit necessary in the furtherance of a judicial process, including in furtherance of such a process related to arrest or detention of a foreign terrorist fighter, Member States shall prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that he or she is seeking entry into or transit through their territory for the purpose of participating in the acts described in paragraph 6, including any acts or activities indicating that an individual, group, undertaking or entity is associated with Al-Qaida, as set out in paragraph 2 of resolution 2161 (2014), provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals or permanent residents;

The measures are far-reaching. Martin Scheinin has an important post on Just Security on the potential for abuse inherent in some of the provisions of the resolution, especially since it finds that all forms of terrorism (and not just international terrorism, however exactly defined) are a threat to international peace and security and subject to the measures set out in the resolution. It is entirely possible that some governments will use this resolution to justify repressive measures. We can certainly expect a wave of domestic legislation which may go even further beyond the requirements of the resolution. On the other hand, many of the resolution’s paragraphs expressly invoke international human rights law or other rules of international law, as did many of the delegations in the Council in their statements, including President Obama. This at least will serve to blunt overly extravagant arguments relying on the primacy clause in Article 103 of the UN Charter (cf. para. 102 of the European Court of Human Rights’ Al-Jedda judgment). But there can be no doubt that we will be dealing with this resolution for many years to come.

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7 Responses

  1. Mike McRoberts

    This makes the Patriot Act feel warm and fuzzy. But, since the US conducts terrorist drone strikes and extralegal attacks in sovereign nations. doesn’t this make Obama guilty of terrorism under this resolution?

  2. Moi

    Obama has announced the arming and training of “moderate rebels” in Syria. In the past these people have gone over to IS in droves which makes the US guilty of a Chapter 7 offence. Russia allows its nationals to fight in Ukraine so Putin is guilty.

    Who’s going to enforce this Resolution?

  3. Mathias

    This resolution is 1373 on steroids. If Richard Barrett (ex head of the 1267 committee) goes on the record to express his concerns that this resolution has for civil liberties, then you know you’re in trouble. If the broad definition of terrorism (as already pointed out by Martin Scheinin above) is a result of a “deliberate tactic to keep countries like Russia from exercising a veto” (as stated by somebody involved in the drafting of the Resolution in The Guardian), then you should start reading this resolution very carefully. China’s Foreign Minister declared after the adoption of the resolution that “China stands ready to strengthen cooperation with various parties in intelligence sharing and personnel training”. If you don’t know how significant this statement is then I urge you to check how many times a Chinese FM has uttered the word ‘intelligence’ at the UN.

    Once again we have to ask ourselves serious questions about the role of the UN SC as a legislator. There have been serious doubts and long debates in many European countries that are most affected by the ‘FTF-threat’. For instance, countries like Belgium, the Netherlands, the UK, France, and Germany have been contemplating laws that would strip suspected terrorists of their nationality. Many have argued against such laws, not only on the basis of human rights concerns, but even from a security perspective. This resolution gives those in favour of such questionable measures a firm boost. The same goes up for those in favour of a European PNR system.

    Finally, there’s the impact that this resolution will have on the whole Snowden-debate, especially inside the UN. Whatever will happen at the Human Rights Council is dwarfed by this Chapter VII resolution, which is bound to lead to more surveillance and intelligence sharing. If 9/11 put Echelon concerns to sleep in the EU, this war against IS or “foreign fighters” will do same for Snowden revelations. (Read Colum Lynch in Foreign Policy on this aspect of the FTF resolution.)

    The past few years the pendulum was swinging back to human rights in the whole “balancing” debate. Well, the pendulum has swung again, and we’re back at 9/11. History repeats itself, first as tragedy, second as farce.

  4. Peter

    So now the USA can target anti-nuclear, anti-climate, occupy Wall street and anyone who disagrees with any govts stance on issues. This is the point where people are no longer heard, but rather are controlled by govts. I am dead against this. Oh wait, now I will be targeted!

  5. Jordan

    It is widely known that many domestic laws “defining” “terrorism” are objectively far too broad in their reach and that no objective definition of “terrorism” has been widely agreed to under international law even though “terrorism” in all its forms, by whomever, etc. has been condemned in GA and SC resolutions since the mid 1980s.
    A definition of “terrorism” is needed, but can we trust governments that have overly broad domestic legislation with the task (no).
    An objective definition of “terrorism” would involve recognition that terrorism is a tactic or strategy, that one element must be that the perpetrator have an intent to produce terror, and that another element must be that terror has been produced (otherwise one might recognize that there has been an attempt only). Definitions that contain phrases like “acts dangerous to human life” might cover a great deal of oil company activities. Words like “violence” cover too much, and so forth. —
    http://ssrn.com/abstract=1583437
    Some domestic definitions are not merely dangerous, they are otherwise laughable.

  6. I’m glad I’m not alone in having some concerns, although I’m sympathetic to the urge behind the resolution. Here’s my post on the subject.

    http://dovjacobs.com/2014/09/29/guest-post-what-is-happening-here-notes-of-caution-on-the-unsc-resolution-on-facilitating-travel-of-foreign-terrorist-fighters/

  7. […] this resolution was welcomed in many circles as being very timely, the resolution also triggered an uproar of criticism and concern with regard to the far reaching powers used by the SC, its lack of clarity in the […]