Counter-Terrorism Related Subsidiary Bodies of the Council

Expected Council Action
The chairs of the:

• Counter-Terrorism Committee (CTC, established under resolution 1373), Croatia;
• 1267 Committee (Al-Qaida and Taliban sanctions), Austria; and
• 1540 Committee (non-proliferation of weapons of mass destruction), Costa Rica

are expected to address the Council during a public debate in May. They brief the Council twice a year. No formal outcome is expected.

Key Recent Developments
1267 Committee

Since the last joint briefing of the Committees in November, the work of the 1267 Committee has focused on:

• updating guidelines for the conduct of its work;
• developing procedures for reviewing all names on its Consolidated List (of individuals and entities subject to sanctions measures) and starting the review; and
• developing procedures for drafting narrative summaries on the reasons for listing of each entry on the Consolidated List and how they should appear on the Committee’s website. (Narrative summaries began appearing on 9 March, see SC/9612.)

The Committee’s new guidelines were adopted on 9 December (SC/9607). These included two new sections, one describing the procedures for reviewing all names on the Consolidated List and another detailing the procedure for considering requests for exemptions from the travel ban.

In late 2008, in accordance with resolution 1822 (which on 30 June extended the mandate of the 1267 monitoring team for 18 months), the Committee started reviewing all 489 names included on the Consolidated List by 30 June 2008. The review, to ensure the Consolidated List is as accurate as possible and to confirm that listing remains appropriate, is to be concluded by 30 June 2010 (SC/9612).

The Committee provided the European Council with summaries of the reasons for listing Al Barakaat International Foundation and Yassin Abdullah Kadi in response to the European Court of Justice ruling on 3 September that the procedures used by the EU to implement UN sanctions had infringed on basic rights in these cases. The European Commission provided the summaries to Kadi and Al Barakaat and gave them the opportunity to comment based on the summaries’ content. After considering their comments, the European Commission decided on 28 November that the listings of Kadi and Al Barakaat were justified, given the preventative nature of the asset freezes, “for reasons of his/its association with the Al Qaida network”. Both have lodged new applications.

Since the last joint briefing in November, the Committee has added six individuals and made 76 amendments to the Consolidated List, delisted one individual and approved its first exemption from the travel ban.

1540 Committee

Since the briefing in November, the work of the 1540 Committee has focused on:

• the appointment of three new experts who commenced work on 1 April;
• finalising the programme of work for the period 1 February 2009 to 31 January 2010 (S/2009/124);
• considering options for improving funding mechanisms to assist states in identifying and addressing needs for implementing resolution 1540; and
• considering a comprehensive review of the status of implementation of resolution 1540.

Under paragraph 8 of resolution 1810 (which on 25 April 2008 extended the mandate of the Committee and its panel of experts for three years), the Committee agreed to a comprehensive review of the implementation of resolution 1540 (S/2009/170). This will be based on information to be provided by member states, as well as intergovernmental and regional organisations. An open meeting of the 1540 Committee will be held in October or November (timed to coincide with meetings of the First Committee of the General Assembly). An outcome document is anticipated by 31 January 2010 and could include identification of gaps in the implementation of resolution 1540, analysis of its impact and recommendations to increase the effectiveness of the committee’s activities.

In December 2007, the then chairman of the 1540 Committee, Ambassador Peter Burian of Slovakia, recommended a greater focus on tailored outreach and assistance to ensure implementation of resolution 1540 and suggested the possibility of a trust fund for country visits by experts to enable more active assistance. In early 2009 the Committee, under paragraph 13 of resolution 1810, decided to use the existing UN Trust Fund for Global and Regional Disarmament Activities to administer voluntary contributions to support activities to identify and address states’ needs related to the implementation of resolution 1540 (S/2009/171).

Throughout 2009 the Committee has also sought to:

• promote implementation of resolution 1540 through outreach, dialogue, assistance and cooperation; and
• enhance cooperation with other organisations.

In order to implement the current programme of work more efficiently and better direct and manage the work of the experts, the Committee decided to create four working groups on a trial basis (S/2009/124). Participation in each working group will be at the discretion of Committee members. The working groups will be responsible for monitoring progress on national implementation, assistance, cooperation with international organisations, and transparency and media outreach.

CTC

Since the previous briefing last November, the work of the CTC has focused on:

• an assessment of progress by member states in implementing resolution 1373;
• facilitating technical assistance; and
• visits to member states.

In December procedures for the CTC and its subcommittees for assessing progress by member states were approved. This “stocktaking” exercise is anticipated to be concluded in late 2009.

At press time, the Counter-Terrorism Committee Executive Directorate’s (CTED) Technical Guide to the Implementation of Resolution 1373 was awaiting Committee approval. This will identify standards and criteria for determining implementation of the various provisions of resolution 1373. It is intended to enhance the ability of the CTED and the CTC to apply consistent judgement across their assessments of member states’ implementation.

Following the approval of a revised technical assistance strategy in June 2008, CTED has referred 84 cases of technical assistance needs to potential donors. Donors have agreed to follow up on 34 referrals.

Key Issues
Sustaining global efforts to combat terrorism and maintaining support for resolutions 1267, 1373 and 1540 and their proper implementation remain key issues. Some states lack either the capacity or the will to implement their provisions. Others accord them low priority because of reporting requirements, lack of understanding and lack of capacity. The 1267 regime has also faced questions about legitimacy, in particular the lack of due process. Key questions are whether these subsidiary organs of the Council are effective and what the most efficient mechanisms to deal with the global threat of terrorism are.

The problem of non-reporting or late-reporting is likely to become more of an issue as the 1267 Committee reviews names on the Consolidated List and the CTC undertakes its stocktaking exercise. Without the active participation of most states, the success of these activities will be undermined.

Concerns over due process raised about the work of the 1267 Committee continue. The Council is making some efforts to strengthen its procedures to enhance the legitimacy of the 1267 regime but it remains unclear to many whether appropriate standards of fairness and clarity are yet met. There are currently thirty legal challenges worldwide involving individuals and entities on the Consolidated List. A key question is whether the new European Council Regulation will go further than the procedures in resolution 1822 (such as reviewing the reasons for listing) and what impact this may have on the 1267 sanctions regime.

A central issue in adopting measures against terrorism is the balance between prevention and protection of human rights. This relates to the broader issue of ensuring that states comply with their obligations under international law when undertaking any measures to combat terrorism.

An issue for the 1540 Committee seems to be its proclivity for focusing on procedural matters (rather than on the substantive implementation of the original measures). Examples are the months taken to agree upon last July’s report on 1540 compliance, the recent appointment of experts and the current programme of work. A key question still not met three months into the current programme of work, and with the working groups now created to implement the programme more efficiently, is whether this is an efficient system to enhance the Committee’s full implementation of resolution 1540.

Options
The open briefing in May—and the transparency it provides—offers the Council (and the wider UN membership) an opportunity to take stock of progress on the substance and working methods of the three committees and their expert groups. Possible options include:

• more active information about the work of the three committees, publishing semi-annual reports on their work and providing more regular informal briefings to member states;
• co-locating the three expert groups;
• creating a single counter-terrorism department within the UN Secretariat encompassing the work of the General Assembly’s Counter-Terrorism Implementation Task Force and the three subsidiary bodies of the Council;
• ensuring all country visits undertaken by the CTED include experts from the 1267 and 1540 expert groups;
• developing a common strategy across the three committees on technical assistance with a view to potentially centralising the technical assistance programmes; and
• strengthening the three committees’ relationships with the Human Rights Council, the High Commissioner for Human Rights and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

Council members and member states could use the debate as an opportunity to provide input on:

• the interim review of CTED which is to be conducted by 30 June in accordance with resolution 1805 (which on 20 March 2008 extended CTED’s mandate until 31 December 2010);
• the merit of extending the mandate of CTED as a special political mission beyond 31 December 2010;
• 1267 sanctions measures which will be reviewed in December 2009; and
• areas of common interest amongst the committees, in order to improve their coordination (the Council expressed its intention to provide guidance on this issue in resolutions 1805, 1810 and 1822).

Council Dynamics
As with all sanctions committees and other subsidiary bodies of the Council, the limited information in the public domain about the workings of the committees and the fact that records are taken only during official committee meetings, means that even though most committees are chaired by elected members, in practice, permanent members of the Council are at a distinct advantage when it comes to influencing the work of the committees. On the other hand, the three counter-terrorism committees are the only Council subsidiary bodies that provide regular public briefings and offer the broader UN membership the opportunity to participate and to debate their work, both in terms of substance and in terms of their working methods.

Within the P5, the UK and France seem most concerned about the court challenges to the 1267 regime, followed by the US. Russia’s historic reluctance to approve delisting requests for Taliban and Chechen entries seems to be becoming an additional factor which is impairing attempts to improve the relevance and fairness of the Consolidated List.

Some new Council members, including Mexico and Austria, seem concerned to bring greater attention to issues of human rights, due process and the rule of law in the work of the committees.

Useful Additional Sources
Assessing Damage, Urging Action, Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, International Commission of Jurists, February 2009
Full forecast