LEGAL COMMITTEE

TOPIC AREAA: MEASURES TO COMBAT INTERNATIONAL TERRORISM

Chair: Joshika Saraf, Co-Chair: Sonia Saranti

Legal Committee of the UN

Measures to Combat International Terrorism

Table of Contents
TABLE OF CONTENTS

I. THE PERSPECTIVE OF THE LEGAL COMMITTEE

II.THE ISSUE AS IT NOW STANDS 2

A. THE PROBLEMATIC DEFINITION

B. TERRORISM AND STATE VIOLENCE; THE NOTION OF TARGETED KILLING 5

C. TORTURE OF TERRORISTS

D. THE NOTION OF THE WAR ON TERROR 6

E. THE NOTION OF PROPORTIONALITY

F. INTERNATIONAL TREATIES AGAINST STATE SPONSORSHIP IN TERRORIST INITIATIVES 8

G. FINANCIAL WAR AGAINST TERRORISM
III.INTERNATIONAL INSTRUMENTS
A. INTERNATIONAL TREATIES
B. RESOLUTIONS

8
9

IV.UN BODIES CONCERNED WITH THE ISSUE AT HAND

V. ISSUES TO BE ADDRESSED

12

VI.BIBLIOGRAPHY 13
VII.RECOMMENDED READING

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Legal Committee of the UN

Measures to Combat International Terrorism

I. The perspective of the legal Committee

Terrorism overall, as well as the issue of measures for combating terrorism in particular, can be seen from a lot of perspectives, i.e. social, political, economic etc.
Among those perspectives is the legal one. Within the context of the legal committee,
the notion of combating terrorism should be seen from its purely legal perspective, so
as the debate to be efficient and to the point under examination. One of the mandates
of the UNGA is the promotion of the international public law, under Article 13 UN
Charter, which writes that The General Assembly shall initiate studies and make
recommendations for the purpose of: a. promoting international cooperation in the
political field and encouraging the progressive development of international law and
its codification; []. That being said, it is of crucial importance that this committee
addresses the notion of combating terrorism by references to the international humanitarian law as now lies and the international law of human rights, formed by the existing conventions specialised or not on terrorism and by customary international law
and any other international law sectors involved with this notion. Additionally, proposals for codifications or concerted practices that could be considered as able to lead
to custom may be discussed. Purely social, political or other but legal observations do
not concern the Legal Committee and will not be accepted.

II.The issue as it now stands

Within this section, some of the problematic aspects of the existent framework for
the combat of terrorism are being examined. Although, they constitute the most
relevant to this notion and up to date problematic fields that need to be further
discussed and developed, there are many other legal issues that could be raised and
articulated, so as the problem to be adequately addressed.
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Legal Committee of the UN

Measures to Combat International Terrorism

A. The problematic definition

The fundamental issue arising out of any legal discussion regarding international
terrorism is the lack of an established definition. The consequence is that one cannot
specify the limits within which to characterise a specific behaviour as a terroristic
behaviour. Thus, it is not clear when states can evoke that there is a terrorist act, or a
threat of a terrorist attack, so as to act accordingly and with respect to what
international law writes.
Indeed the struggle around the establishment of a definition is long lasting,
despite the existence of several efforts defining terrorism, which are so far considered
as inconsistent, inadequate and contradictory with each other1. The ad hoc Committee
for Measures to eliminate International Terrorism established by the UNGA
unsuccessfully attempted to establish such a definition between 1972 and 1979. The
issue came to the surface over and over again, but all the attempts to find a
commonplace for such a definition in the context of a well-appreciated Convention
have failed2. In this regard, though, it has been sustained that the reason why there is
no established definition of the phenomenon is not the inability of states to agree on
the range of criminal conduct that could be treated as terroristic act, but their
hesitation to discuss on sensitive issues, such as whether the so called as state
violence can be named as terroristic act3.
This being said, there are two main points of view on this issue. First, it has been
submitted that it is impossible to establish a definition due to the fact that terrorism is
a multifactorial phenomenon with the characteristic that one cannot identify all its
factors in every case it is expressed. In this sense, according to Fletcher (2006) violence, intention; the nature of victims; the connection between the offender and the
state, the just cause, a short of organisation, a theatrical presentation, and the absence
of the sense of guilt can each be identified in a terroristic act. However, this does not
mean that they can be or shall identified in every occasion. Hence, according to this
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Meisers (2008), p. 7

Guillaume (2004), pp. 538-539

Bantekas Il. & Oette L. (2013), p. 615

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Measures to Combat International Terrorism
school what one needs to do, in order to ascertain if possible when terrorism applies, is to look for the existence of those factors and correlate them.
To the contrary, according to the point of view of the majority of the legal theorists, there is a great need of defining the notion of terrorism in precise legal terms, so
as to be able to distinguish it from the rest of the crimes4. In this context, it is sustained that there are two broad categories of definitions of terrorism, one highlighting
one of the aspects of terrorism, that is its cruel and condemnable character; a second
spotting at the distinction between terrorism and other violent acts suggesting that
there is no great difference between terrorism and the forms of state violence5.
After 9/11, however, it is sustained not internationally acknowledged that the
response of the international community to the above-analysed issue has been immediate. In fact the Security Council of the UN adopted the three constituent elements of
a terrorist act prescribed by the General Assemblys 1994 Declaration on Measures to
Eliminate International Terrorism. Those three elements are first, the perpetration of
serious criminal acts; second, the intention to inflict terror on civilians, with the aim,
third, that a state abstains from undertaking a certain act or undertakes to do one6.
Given that the majority of states adopt this definitional approach and given that it
also exists in a Security Council Resolution7, it could be argued that they constitute a
general principle of law, which thus could be argued as establishing international law.
Overall, it cannot but be acknowledged, that when there is no established legal
approach as to what terrorism consists of, it is impossible to enact any legislation providing for responses to terrorism, without the danger of misinterpretation and misapplication to the detriment of the stakeholders involved primarily terrorism suspects
and the civilians surrounding them and the proper and coherent development of international law.

Meisels (2008), p. 8

Meisels (2008), p. 11

Bantekas Il. & Oette L (2013), p. 616

UNSC Resolution 1566/2004 (par 3); UNSC Resolution 1624/2005

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Legal Committee of the UN

Measures to Combat International Terrorism

B. Terrorism and state violence; the notion of targeted

killing
The Islamic states response to the terrorist activity of the Palestinian militants to
the West Bank of Gaza, following the US extra-judicial killing numerous times in the
past, which has led to the assassination of terrorist leaders by the legitimisation of the
notion targeted killing, has risen concerns of violation of international law standards
of legitimate warfare (Meisels (2008), p. 129). In this sense, it has been suggested that
apart from their illegality as it is sustained that targeted killing constitutes political
assassination and not a method for combating terrorism, they are causing the opposite
results from what they aim to, i.e. the provoke the involvement of revenge-seeking
individuals in terrorist groups (Atran 2003).
As the international law of the armed conflicts now stands and principally enshrined in custom, the Hague Convention, the Fourth Geneva Convention, and the
First Additional Protocol to the Geneva Conventions (Protocol I), it prohibits deliberate attacks on civilians/non-combatants, but does not give them total immunity from
attack. Terrorists are considered as civilians although by their own admission, they
are not civilians8 and thus they should be treated as such and not be subject to attacks unless, at the time of the attack, they directly participate in hostilities. However,
there are attempts by state courts to broaden the notion of direct participation, so as to
expand the time period when terrorists may be legally attacked and thus restrict the
protection conferred on this category of civilians9. This approach is contrary to Article
51(3) of Protocol I, which provides that civilians enjoy immunity from deliberate attack "unless and for such time as they take a direct part in hostilities.

C. Torture of terrorists
The torture of terrorists has been used as means of combating terrorism in the
sense of undertaking this action so as to extract information for future attacks and this
way prevent the subsequent suffering10. Of course this approach raises serious doubts
8

Meisels (2008), p. 132

Eichensehr (2007), p. 1873

10

Meisels (2008), p. 166

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Legal Committee of the UN

Measures to Combat International Terrorism
as to the justification of such actions. In this context, it has been observed that the
privilege against self-incrimination could be raised. However, the contra argument is
that the aim is the revealing of others future criminal acts (Meisels (2008), p. 166).
States tend to evoke as well their right of self defence, when they are accused of
torture of terrorists, in the sense that despite the discussion of whether terrorists are
combatants or non-combatants they commit acts that are of military or paramilitary
nature (Meisels (2008), p. 168). In this context, it is suggested that the notion of just
war could be justifiably evoked, whereas this would not have been so under normal
circumstances. Torturing in this context is suggested as justifiable as a measure of
combat under the thought that, if killing is justified in self defence, why torturing is
not11?
The notion of torturing terrorists needs to be examined in the context of the
combat of terrorism only from its preventive perspective and not as a measure of
punishment or intimidation.

D. The notion of the War on Terror

Following the 9/11 events the expression War on Terror12 was addressed from
the USA, in particular the then President G. W. Bush, in order to describe the
approach to be followed for the combat of terrorism by the States. However, it is
sustained that this notion, along with the logic accompanying it, was the reason why
innocent people, having no connection with terrorism, were abducted and brutally
tortured by security forces on the basis of mere suspicions or wrong information13.
It is sustained that, as long as the War on Terror lasted, many if not all the
states endorsing it violated any rights that the suspected person has, in case he was
suspected for terrorist acts by means of torture, secret abductions and many other
violations of human rights. In this context, slightly before the establishment of the
though that human rights can be violated in view of combating terrorism, the Security
11

Meisels (2008), p. 169

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6
George W. Bush, joint session of Congress
the American People,
20/9/2001, available at: http://
georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html, accessed on:
06.08.2015
12

13

Bantekas Il. & Oette L (2013), p. 623

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Measures to Combat International Terrorism
Council of the UN adopted Resolutions 1456/2003 & 1624/2005, which write that a
measure to combat international terrorism cannot be legal if does not comply with the
international law of human rights14.
But even out of the context of the War on Terror, states seem to adopt
intentionally vague criminal rules, so as to enable the recourse to emergency
procedures and increase arbitrary detention without the involvement and application
of the ordinary guarantees for suspected or even accused people15.

E. The notion of proportionality

The principle of proportionality is a well-established principle of international
law and of international humanitarian law. Rule 14 of the International Committee of
the Red Cross (ICRC) list of rules of customary international humanitarian law
[available at: https://www.icrc.org/customary-ihl/eng/docs/v1_rul] writes that
Launching an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would
be excessive in relation to the concrete and direct military advantage anticipated, is
prohibited. This rule is applicable to both international and non-international armed
conflicts. It is also enshrined in Article 51(5)(b) of Additional Protocol I, and repeated
in its Article 57.
From the above observations, along with other initiatives so long undertaken by
states within or out of the context of the War on Terror to combat terrorism, it seems
that states are reluctant to apply the rules of international human rights law and
international humanitarian as the principle of proportionality indicates that the state
activities should be undertaken. In this context, the states should probably repeat that
the principle of proportionality cannot be overstepped by the mere recall of
emergency occasions, even when terrorist attacks or the threat of terrorist attacks are
at hand.

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14

Ibid.

15

Bantekas Il. & Oette L (2013), p. 624

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Measures to Combat International Terrorism

F. International treaties against state sponsorship in terrorist initiatives

Over the years, states have been accused of assisting terrorists in their activities.
This assistance takes the form of administrative detention, kidnappings of suspects,
illegal renditions to third countries, targeted killings as above indicated and other
violations of humanitarian law16.
In this respect, it is sustained that the international community should be endorsed
to conclude Treaties of universal acceptance, which even if not establishing a
definition of terrorism should address the issue of state involvement in those acts
and render states internationally responsible under specific rules adjusted to the
special nature of this crime. The issue should be addressed when discussing the
measures of combating terrorism, due to the fact that state involvement is one of the
most important reasons why terrorism does not cease to develop.

G. Financial War against Terrorism

It is sustained that the financial war against terrorism is one of the most efficient
and at last legitimate ways of combating terrorism. This way terrorism is targeted in
its routes, given that the perpetration of terrorist acts is rather expensive. The issue
needs to be addressed in a two-folded manner within the context of combating
terrorism: First, the funding of terrorists, through money laundering, state
involvement or any other activity needs to be hindered. Second, the distribution of the
funds in anyway found in the hands of terrorist groups needs to be impeded.
In this regard, specific measures constituting the so-called as Financial War
against Terrorism should be further discussed within the international community,
whereas the required effective cooperation among states to conduct this War is of
crucial importance17.

16
17

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Bantekas Il. & Oette L (2013), p. 616

See indicatively: Financial Action Task Force, The Financial War on Terrorism; A guide by the Financial Action task Force, (FATF, France 2004); American Foreign Policy Council, Confronting Terrorism Financing, (University Press of America, USA, 2005)

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Measures to Combat International Terrorism
This being said, the International Convention for the Suppression of the
Financing of Terrorism and the Declarations and Reservations submitted by the
participating states [available at: https://treaties.un.org/pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=XVIII-11&chapter=18&lang=en, accessed on: 08.08.2015]
needs to be examined. The Convention entered into force on 10 April 2002 and as of
today it has been ratified by 187, this rendering it one of the most successful treaties
on anti-terrorrism.

III.International Instruments
A. International Treaties
[Indicative List]
Law of the Hague (1899 & 1907) primarily the provisions affecting the
conduct of hostilities
Geneva Conventions of 1949
First Additional Protocol to the Geneva Conventions (Protocol I)
The Hague Convention of 1970 for the Suppression of the Unlawful Seizure of
Aircraft
GA 1994 Declaration on Measures to Eliminate International Terrorism
International Convention for the Suppression of the Financing of Terrorism,
Adopted by the General Assembly of the United Nations in resolution 54/109 of 9
December 1999, available at: http://www.un.org/law/cod/finterr.htm, accessed on
08.08.2015

B. Resolutions
[Indicative List]
Security Council Resolution 1368 (2001) Condemnation of 11 September attacks
against United States
Security Council Resolution
1373 (2001) Creation of Counter Terrorism
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Committee (CTC)
Security Council Resolution 1456 (2003) Declaration by Foreign Ministers on

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Measures to Combat International Terrorism
combating terrorism
Security Council Resolution 1566 (2004) on Creation of working group to
consider measures against individuals, groups and entities other than Al-Qaida/
Taliban
Security Council Resolution 1624 (2005) on the Prohibition of incitement to
commit terrorist acts
For further and more detailed reading of Resolution on the issue, you may check
the Resolutions of the Counter Terrorism Committee, established by the Security
Council Resolution 1373 (2001), which was adopted unanimously on 28 September
2001 in the wake of the 11 September terrorist attacks in the United States. [available
at: http://www.un.org/en/sc/ctc/resources/res-sc.html, accessed on: 08.08.2015]

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IV.UN Bodies concerned with the issue at hand

UNGA See among others the Reports of the December 17, 1996
established by Res 51/210 the ad hoc Committee for Measures to eliminate
International Terrorism [available at: http://legal.un.org/terrorism/, accessed on
08.08.2015].
The Human Rights Committee has repeatedly engaged with the notion of
terrorism so as to criticise states criminal legislation, where vague definitions on
terrorism are used on purpose18.
UN Security Council See primarily the Resolutions of the Counter Terrorism
Committee, right above referred.

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UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations:

Israel, 21 August 2003, CCPR/CO/78/ISR, available at: http://www.refworld.org/docid/
3fdc6bd57.html, accessed on 8 August 2015

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Measures to Combat International Terrorism

V. Issues to be addressed
Targeted killing: definition of direct participation, Is a convention needed? Are
states allowed to change the law in order to comply with it?
The Courts upheld will be national courts and most probably courts of states
involved in targeted killing. They are the ones to formulate the custom, thus the law.
In this respect is it necessary that the international community acts preventively and
establishes law, in the form of treaties so as the law not to become restrictive of the
rights conferred with the above manner?
Should the assassination of terrorists be internationally endorsed in legislation?
The notion of proportionality: what is proportional, how should it be applied?
Strict or broad approach of the already existent rules?
Are terrorists civilians/non-combatants? What do they sustain? What does
international law and legal literature writes on the issue?
State Responsibility: Extend of Responsibility and Reaction of the International
Community in case a state is identified as sponsoring terrorist initiatives for political
or other purposes.
Should the notion of the War on Terror and its inherent meaning turn into an
international term and if so, which are the limits within which it will be specified and
addressed in attempts of international codification associated with the combating of
terrorism?
What other derogations from the international law of human rights and
international humanitarian law could you identify? Can/should the UN or the states
under the umbrella of other international organisations urge for the prohibition of
those practices?

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Given all the above derogations from legality, what measures for combating
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terrorism could be identified as both legitimised and efficient?

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Measures to Combat International Terrorism

VI.Bibliography
Atran Scott, Genesis of Suicide terrorism Science, American Association for the
Advancement of Science 299 (2003), pp.1534-1539
Bantekas Il. & Oette L., International Human Rights; Law and Practice (Cambridge University Press, UK 2013)
Eichensehr Kristen E., On Target? The Israeli Supreme Court and the Expansion
of Targeted Killings, The Yale Law Journal, Vol. 116, No. 8 (Jun., 2007), pp.
1873-1881
Financial Action Task Force, The Financial War on Terrorism; A guide by the Financial Action task Force, (FATF, France 2004)
Fitzpatrick Joan, Speaking Law to Power: The War Against Terrorism and Human Rights (2003), EJIL (2003), Vol. 14 No. 2, pp. 241-264, available at: http://
www.ejil.org/pdfs/14/2/413.pdf, accessed on 06.08.2015
Fletcher George P., The Indefinable Concept of Terrorism, Journal of
International Criminal Justice 4 (2006), 894 911, available at: http://
www.akira.ruc.dk/~fkt/filosofi/Artikler%20m.m/Fletcher%20-%20The
%20Indefinable%20Concept%20of%20Terrorism.pdf, accessed on: 06.08.2015
Guillaume Gilbert, Terrorism and International Law (2004), The International
and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), pp. 537-548
Meisels Tamar, The Trouble with Terror; Liberty, Security and the Response to
Terrorism (Cambridge University Press, UK 2008)
American Foreign Policy Council, Confronting Terrorism Financing, (University
Press of America, USA, 2005)
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VII.Recommended Reading
Bantekas Il. & Oette L., International Human Rights; Law and Practice (Cambridge University Press, UK 2013), [Chapters 15 & 16]
Fitzpatrick Joan, Speaking Law to Power: The War Against Terrorism and Human Rights (2003), EJIL (2003), Vol. 14 No. 2, pp. 241-264, available at: http://
www.ejil.org/pdfs/14/2/413.pdf, accessed on 06.08.2015
Fletcher George P., The Indefinable Concept of Terrorism, ournal of International
Criminal Justice 4 (2006), 894 911, available at: http://www.akira.ruc.dk/~fkt/
filosofi/Artikler%20m.m/Fletcher%20-%20The%20Indefinable%20Concept%20of
%20Terrorism.pdf, accessed on: 06.08.2015
Guillaume Gilbert, Terrorism and International Law (2004), The International
and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), pp. 537-548

Reports by Member States pursuant to Security Council resolution 1624 (2005),

available at: http://www.un.org/en/sc/ctc/resources/1624.html, accessed on:
08.08.2015
Security Council Resolution 1456 (2003) on the issue of combating terrorism
(available at: http://www.unrol.org/files/UNSCR1456.pdf, accessed on 07.08.2015)
UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding
Observations: Israel, 21 August 2003, CCPR/CO/78/ISR, available at: http://www.refworld.org/docid/3fdc6bd57.html, accessed on 8 August 2015
International Convention for the Suppression of the Financing of Terrorism,
Adopted by the General Assembly of the United Nations in resolution 54/109 of 9
December 1999, available at: http://www.un.org/law/cod/finterr.htm, accessed on
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Measures to Combat International Terrorism
Reports of the December 17, 1996 established by Res 51/210 the ad hoc Committee for Measures to eliminate International Terrorism [available at: http://legal.un.org/
terrorism/, accessed on 08.08.2015

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