November 2008 Monthly Forecast

Terrorism

Expected Council Action
The chairs of the Counter-Terrorism Committee (CTC, established under resolution 1373), the Al-Qaida and Taliban Sanctions Committee (the 1267 Committee), and the 1540 Committee (non-proliferation of weapons of mass destruction) are expected to address the Council in an open briefing in November. The chairs brief the Council twice a year. No formal outcome is expected but an open debate is possible.

Recent Developments
In the last eight months mandates were all renewed for the three expert groups supporting the Council’s Counter-Terrorism Committees:

Contrary to the hopes of some member states the Council did not pursue the option of combining the three support bodies. Instead, all of the renewal resolutions called for better cooperation by the three Committees and their respective expert groups, including improved information sharing, coordinated visits to countries, technical assistance and relations with international and regional organisations. The expert groups are currently trying to implement this by developing a common strategy for cooperation with international and regional organisations for consideration by their respective Committees.

1267 Committee
Resolution 1822 of 30 June extended the mandate of the Al-Qaida/Taliban Monitoring Team for 18 months. The Council responded to longstanding calls for greater transparency and fairness of Committee procedures by:

At press time, the Committee was discussing the format of the public narrative for the website including whether relevant information collected after the listing date should be added. Also under consideration were working methods for reviewing names on the Consolidated List and review of the Committee’s guidelines.

The Committee was also discussing possible implications of the European Court of Justice’s decision in relation to Al Barakaat International Foundation and Yassin Abdullah Kadi. Both were designated by the 1267 Committee as being associated with Al-Qaida and had their assets frozen in 2001 under regulations adopted by the European Council that transposed the UN sanctions list into an EU list, obliging EU Member States to freeze the assets of listed individuals and entities. On 3 September the Court ruled that the European Council regulation had infringed Kadi and Al Barakaat’s fundamental rights and annulled the regulation insofar as it froze their assets. The Court accepted that the asset freeze might, in principle, be justified. But it said the EU had failed to inform Al Barakaat and Kadi at the time of, or after, their listing, of the reasons for their listing, thereby denying them the right to legal recourse. The Court allowed the European Council three months to remedy the situation. Following the September ruling, the European Council requested the 1267 Committee to supply information to provide to Kadi and Al Barakaat on the reasons for their listings.

Since the last joint briefing in May, the Committee added 21 individuals to the Consolidated List, improved existing information on dozens of individuals and entities and delisted two individuals, one of whom is deceased and another who had requested delisting through the Secretariat’s focal point.

Human Rights Council Developments
On 20 October, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, Martin Scheinin, briefed the 1267 Committee and CTC. According to Scheinin resolution 1822 is insufficient for meeting the standards articulated by the European Court of Justice to remedy the situation in the case of Kadi. During his briefing Scheinin provided the Committees with a range of options to address challenges to the 1267 regime ranging from establishing an independent body of security classified experts to review listing requests to abolishing the 1267 Committee and its terrorist listing and relying upon resolution 1373 for the legal basis for national terrorist listing procedures (resolution 1373 decides states shall freeze assets of those who commit or attempt to commit terrorist acts).

CTC
Resolution 1805 of 20 March endorsed the revised organisational plan of the CTED and renewed its mandate until 31 December 2010. It urged the CTED to strengthen its role in facilitating technical assistance for the resolution’s implementation and to intensify cooperation with international, regional and subregional organisations.

On 10 June the CTC submitted its annual global survey on implementation of resolution 1373 to the Council. The survey provides an assessment of implementation by regions and subregions, and draws conclusions about progress in the implementation of the resolution in key thematic areas allowing the identification of gaps and vulnerabilities, either in particular regions or across the board.

The survey draws on preliminary implementation assessments (PIAs) for each state. PIAs are the primary tool for assessing countries’ implementation of resolution 1373. They were designed to alleviate the need for states to provide regular reports and draw on public information as well as that provided by the state. At press time, the CTC has shared with most states their first PIA. Until the present, there has been no standard approach to assess each state’s implementation of resolution 1373. CTED is currently preparing a technical guide to correct this problem, for approval by the CTC. CTED is also discussing working methods for taking stock of progress made by states in implementing resolution 1373.

1540 Committee
Resolution 1810 of 25 April extended the mandate of the 1540 Committee and its Panel of Experts until 25 April 2011. It called upon all states that have not presented a first report on measures taken to implement resolution 1540 to do so and encouraged the Committee to actively promote full implementation by outreach, dialogue, sharing of lessons learned, facilitation of assistance and cooperation. The Committee was requested to report, by 31 December, on options for developing and making more effective existing funding mechanisms for these efforts.

On 18 August, the 1540 Committee presented its second report to the Council on the status of implementation of resolution 1540. The Committee concluded that states need to do more to implement the resolution. Achieving the resolution’s goals also required more intensive Council action particularly on capacity building and sharing lessons learned. The Committee should strengthen its role in matching states willing to provide assistance with those in need of assistance to implement resolution 1540.

1566 Working Group
The Working Group under resolution 1566 was established to consider and submit recommendations to the Council on practical measures to be imposed on terrorists other than Al-Qaida/Taliban and to consider establishment of an international fund to compensate victims of terrorism and their families. The group has been inactive. At its last meeting on 28 April 2006 it was unable to reach consensus on the expansion of the list beyond that already established under the Al-Qaida/Taliban Sanctions Committee. On the compensation fund, the Group encouraged individual states to extend assistance to victims of terrorist attacks. The Group has not reconvened since.

Terrorism Issues in the Wider UN System
In September, the General Assembly conducted the first formal review of the implementation of the UN Global Counter-Terrorism Strategy which was unanimously adopted in September 2006 and outlined concrete measures to address terrorism in all aspects. The Assembly renewed its support for the strategy and called on states and the UN to accelerate efforts to implement it. Members urged the Secretary-General to institutionalise the Counter-Terrorism Implementation Task Force so it can fulfil its mandate of ensuring system-wide coordination and coherence in counter-terrorism efforts of the UN system.

Negotiations on the draft Comprehensive Convention on International Terrorism continue for their tenth year. Disagreements persist about the legal definition of terrorism, the relationship between terrorism and national liberation movements, and activities of states’ armed forces in armed conflicts.

Key Issues
Serious due process concerns have been repeatedly raised since the 1267 Consolidated List was created in early 2002. Gradual progress to address these concerns included:

But as indicated in the 20 October briefing by Special Rapporteur Scheinin the underlying issues still remain. A key question is what EU member states can do to satisfy the right of Kadi and Al Barakaat to legal recourse, in the absence of radical changes to the 1267 regime. A broader issue for the Council, given there are reportedly 25 other lawsuits underway in countries worldwide and the likelihood the European Court’s ruling will trigger similar challenges, is what options exist for the longer term. Some in the Security Council have consistently resisted the creation of a body with some level of independence and impartiality to review petitions for delisting, most recently presented in a formal proposal for a review panel by six European member states.

On a quite separate plane for the Council is the problem of implementation of the three resolutions by all states. Non-reporting or late-reporting member states present a real problem for the Council. But the wider issue of non compliance with the substance of resolutions also lurks in the background. While CTC’s introduction of the PIA has helped alleviate reporting fatigue, the need remains for states to continually engage with CTED and to review and update their PIA. After four years the 1540 Committee is still waiting for approximately forty states to submit their first report.

The consensus-based decision making procedures of the three counter-terrorism committees (an unwritten rule of all Council subsidiary bodies) continue to impair their work. This was particularly evident during the six months it took to negotiate the final text of the 1540 Committee’s most recent report. Given the emerging potential terrorism-related threats (more than fifty countries have alerted the International Atomic Energy Agency they are considering nuclear power), a key question for the Council is whether the Committees can better advance their agendas.

Options
The joint briefing provides the Council (and perhaps the wider UN membership) with an opportunity to continue discussions on improving engagement between the expert groups and member states and other organisations through enhanced cooperation and coordination and other issues of concern. Options here include:

Council and Wider Dynamics
During their summit in June, G8 leaders called on all states to implement Security Council counter-terrorism resolutions. They undertook to further strengthen cooperation among the G8 and the UN, especially by enhancing efficient coordination with the CTC/CTED.

There appears to be widespread acceptance that the combination of the arrival of the new CTED executive director and CTED’s new organisational structure has advanced the work of CTC. Previous concerns such as limited outreach to the wider UN membership, consistency of judgements and an unbalanced country visit programme have begun to be addressed.

Council members seem united in appreciation of the implications for the EU of the European Court of Justice’s decision. However, there is a sense that some see it as a problem the EU will simply have to live with. Others feel that the case simply demonstrates that the new procedures introduced into resolution 1822 didn’t go far enough in protecting the rights of individuals and entities and support the introduction of an independent judicial panel to review delisting applications. The P5 continue to resist such a measure.

Some members are also worried that the court cases around the world may be perceived as undermining the Council’s authority.

The Council remains divided on 1540 issues, with some preferring to see proliferation issues addressed by the General Assembly.

UN Documents

Selected Security Council Resolutions

  • S/RES/1822 (30 June 2008) extended the mandate of the 1267 Monitoring Team until 31 December 2009.
  • S/RES/1810 (25 April 2008) extended the mandate of the 1540 Committee and expert body until 25 April 2011.
  • S/RES/1805 (20 March 2008) extended the mandate of the Counter-Terrorism Executive Directorate to 31 December 2010.
  • S/RES/1735 (22 December 2006) established a mechanism on notifying the individual or entity being added to the Consolidated List.
  • S/RES/1730 (19 December 2006) established a “focal point” within the UN Secretariat to process submissions for delisting.
  • S/RES/1617 (29 July 2005) provided guidelines to identify those associated with Al-Qaida or the Taliban.
  • S/RES/1566 (8 October 2004) called for better cooperation between the Council’s counter-terrorism committees and established a working group to consider practical measures to be imposed on terrorists other than Al-Qaida/Taliban.
  • S/RES/1540 (28 April 2004) established the 1540 Committee and its mandate.
  • S/RES/1452 (20 December 2002) provided humanitarian exemptions to the assets freeze of those on the Consolidated List.
  • S/RES/1373 (28 September 2001) established the CTC and its mandate.
  • S/RES/1267 (15 October 1999) established the Al-Qaida and Taliban Committee and its sanctions mandate.

Security Council Debate Records

  • S/PV.5886 (6 May 2008) was the transcript of the last briefing by the chairs of the CTC, 1540 and 1267 Committees and the following debate.
  • S/PV.4892 (12 January 2004) was a debate in which member states began calling for better cooperation between counter-terrorism committees.

 

Other

  • S/2008/428-A/62/891 (2 July 2008) was a discussion paper on the establishment of an expert panel to assess delisting requests from representatives of Denmark, Germany, Liechtenstein, the Netherlands, Sweden and Switzerland.
  • A/63/223 (6 August 2008) was the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

Other Relevant Facts

Committeee Chairs:

  • Ambassador Neven Jurica (Croatia): CTC
  • Ambassador Jorge Urbina (Costa Rica): 1540 Committee
  • Ambassador Jan Grauls (Belgium): 1267 Committee

Useful Additional Resource

Security and Human Rights, Counter-Terrorism and the UN, Amnesty International, September 2008
Full forecast