Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters”, but does not define “terrorism”

The aim of Resolution 2178 of the UN Security Council, which was passed unanimously on 24 September, is laudable in principle: to combat the growing jihadi “terror tourism”, coming from France, Germany, the UK and other Western states, in a comprehensive manner, not just through criminal and police laws. In its preamble, the eight-page Resolution explicitly recognises that international terrorism cannot be defeated through military and other repressive measures alone. However, it does not define terrorism, its key object of reference, instead speaking vaguely of “terrorism in all forms and manifestations”. Its operative paragraphs (paras. 2 ff.) refer to “terrorists”, “terrorist groups”, “individuals” and “person[s]” travelling abroad to fulfil a terrorist “purpose”, making no distinction between them. This terrorist purpose supposedly consists of the perpetration or preparation of terrorist acts, or the participation in terrorist acts or terrorist training. UN member states must prosecute the persons in question. Furthermore, they must make any financing of such journeys and assistance in carrying them out, including the recruitment of “terrorist” fighters, subject to criminal sanctions and prosecution. Finally, the listing of the persons in question – famously called a ‘civil death penalty’ by Dick Marty, the former chairman of the Legal Affairs and Human Rights Committee of the Council of Europe – is also provided for (para. 7).

But how is all of this to work under the rule of law if the phenomenon to be combatted is not defined? The Resolution remains silent on this issue, referring only to fighters belonging to ISIL, ANF and other groups deriving from Al-Qaida (para. 10), without, of course, presenting this as a definitive list. One wonders why the Resolution did not adopt para. 3 of Security Council Resolution 1566. This paragraph defines terrorist acts as acts (1) committed with the intent to cause death or serious bodily injury, or taking of hostages, (2) with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which (3) constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. This is, in essence, the definition of international terrorism recognised by customary international law, which also forms the basis for a UN draft treaty of 2010 and is referred to in international jurisprudence, such as the famous jurisdictional decision (15 Feb. 2011) of the UN Special Tribunal for Lebanon, mainly authored by the late Antonio Casesse.

Unfortunately, Resolution 2178 ignores all of these definitions and thus ultimately leaves it up to each UN member state to apply the measures called for to those individuals defined as “terrorist” by that respective state itself. Against the background that the term “terrorism” has been increasingly exploited since 11 September 2001 to combat political opposition and given the predominantly authoritarian orientation of the great majority of the UN member states, this is downright naive. Or, alternatively, the Resolution is to be read as, precisely, an infamous strategy on the part of these authoritarian states to have their repression of internal opposition rubber-stamped at the highest level of international law. In any case, it is the Resolution’s broad and ambiguous approach to ‘terrorism’ which gives cause to concern as it, as rightly criticised by Martin Scheinin, ‘carries a huge risk of abuse’ by authoritarian states.

Incidentally, here – as so often elsewhere – the devil is in the detail. UN member states are to prevent the entry or departure of “foreign terrorist fighters”. But how is an as yet unmanifested terrorist intent or purpose to be detected at the moment of border crossing? In more concrete terms: how can it be determined whether a person is travelling to Turkey as a tourist or is only using Turkey as a transit country to join IS in Iraq or Syria? The resolution insofar requires “credible information” as the basis for “reasonable grounds to believe” (para. 8) that the person in question is pursuing a terrorist purpose. However, the tighter preventive police measures thus called for, particularly in the context of border controls, must not lead to any discrimination based on stereotypes (para. 2). This sounds nice, but is hardly realistic. How is a border official to recognise inner terrorist intent if not on the basis of certain external features (long beard, long gown, the Qur’an in the individual’s luggage), that is, on the basis of offender-focused discrimination?

Yet another issue is cause for concern: UN member states are called upon to require their airlines to provide advance passenger information to the states of entry (para. 9). This requirement has already led to conflict between the EU and the USA and here the question again arises of w ho is to decide whether the personal information of a certain passenger is to be shared, and according to which criteria. The resolution does not provide an answer to this question; it refers only to national law and the requirements of international law, but without envisaging any concrete safeguards to guarantee the rights of the passengers concerned.

As far as national law is concerned, one can be pretty sure that at least the criminal law of most states, as a consequence of the far-reaching post 9/11 reforms, already covers the border crossing for terrorist purposes. Take for example sections 89 a, 89b, 91, 129 a, 129 b of the German Criminal Code. Section 89b already covers any contact with (foreign) terrorist groups and thus also any travel with the aim of making contact with such a group. Of course, this does not solve the above mentioned basic problem of such an anticipated criminalisation, namely how, in the case of surplus intent offences, this very intent, justifying the criminalisation, is to be determined without taking recourse to the above mentioned offender-focused external factors. To be sure, the codification of an offence like “border crossing with terrorist intent” would probably not stand up to constitutional or human rights review, as de facto it would criminalise any border crossing into states (such as Turkey) that border upon centres of terrorist activity, thus unduly restricting the general freedom of movement on the basis of a mere terror suspicion. However, unfortunately, this is what Resolution 2178, taking seriously, requires and this is another reason to be critical of it.