What's In Blue

Posted Tue 23 Sep 2014

Security Council Summit Meeting and Resolution on Foreign Terrorist Fighters

Tomorrow (24 September), at a Security Council summit meeting, the Council is expected to adopt a resolution addressing the threat posed by foreign terrorist fighters and expanding the obligations on member states in responding to this threat. The meeting will be chaired by US President Barack Obama and thirteen Council members are expected to be represented by their heads of state or government (Russia and China will be represented at foreign minister level). The US led two rounds of negotiations on the draft resolution. After bilateral negotiations, the draft was put in blue yesterday. Even though the meeting was originally intended to be a high-level briefing by the Secretary-General Ban Ki-moon with only Council members participating, a decision was made to change the format to an open debate given interest from the general membership.

The US circulated a concept note ahead of the meeting highlighting the unprecedented flow of fighters and the growth of facilitation networks fuelling conflicts in Afghanistan, Iraq, Libya, Mali, Syria, Yemen, the Horn of Africa and elsewhere. The note also underlined how foreign terrorist fighters “not only exacerbate existing conflicts, but also often return home possessing new skills and connections, increasing the threat of home-grown terrorist attacks” (S/2014/648).

The draft resolution, to be adopted under Chapter VII, builds on the current counter-terrorism framework established by the Council, which includes resolutions that impose obligations on states to take certain actions to suppress terrorism, such as criminalising the financing of terrorism and the recruitment of members to terrorist groups (resolution 1373 adopted on 28 September under Chapter VII in the aftermath of the 11 September 2001 attack in the US) or calling upon member states to criminalise the incitement to commit terrorist acts (resolution 1624 of 14 September 2005 adopted at a summit meeting). In addition to stressing that such a framework applies to this phenomenon, the resolution also includes several innovations. The main one is the obligation that 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 financing, planning, preparation or perpetration of terrorist acts. It also calls for state cooperation in preventing individuals from travelling to join terrorist groups and those assisting them, by sharing information, assistance with criminal investigations, evidence gathering, as well as financing and capacity building assistance. The draft resolution places an emphasis on the importance of countering violent extremism in order to prevent terrorism and encourages engagement with relevant local communities and non-governmental actors in developing strategies to address the conditions conducive to the spread of violent extremism.

Although the onus of implementation is largely on member states, some follow-up to the adoption of the resolution is planned using existing UN counterterrorism mechanisms. The monitoring team of the Al-Qaida 1267/1989 sanctions regime is to provide a report within 180 days to the committee (and an additional oral report within 60 days) assessing the threat posed by foreign terrorist fighters and providing recommendations for actions to enhance the response of the threat. Additionally, although no time frame is given, it asks the 1373 Counter-Terrorism Committee, with the assistance of its Executive Directorate (CTED), to make recommendations on capacity gaps of states, facilitate technical assistance to fill those gaps and put together a compilation of “good practices” to stem the flow of foreign terrorist fighters.

At a time when Council dynamics have rendered the Council unable to overcome divisions on a number of pressing situations (e.g., Israel/Palestine, Syria or Ukraine), counter-terrorism appears to be one of the issues generating unanimous support among Council members. As a result the negotiations were generally smooth and it seems that none of the members had significant concerns. The main issues raised by member states during the negotiation process focused on legal aspects of the draft. These included references to compliance with domestic law and international law, including human rights law or the need to address existing international agreements on common borders, such as the European Schengen Area. Following comments from Russia, the draft resolution also calls on states to ensure that refugee status is not abused by the perpetrators, organisers or facilitators of terrorist acts, including by foreign terrorist fighters. Chad and China pushed to spell out the purposes and principles of the UN Charter in the resolution, in order to highlight the need for respecting sovereignty, territorial integrity and political independence of all states. Jordan, given its geographical location, was keen to include language regarding the different manifestations of this threat to neighbouring countries.

The Al-Qaida 1267/1989 sanctions regime, which has mechanisms to ensure due process guarantees (namely through the Ombudsperson) can already be used to impose a travel ban on foreign terrorist fighters. In fact, today sixteen new names, two entities and fourteen individuals which were mostly terrorist fighters with ties to Al-Qaida affiliates or its splinter groups, were listed by the 1267/1989 Committee. However, it appears that Council members were open to authorising separate national systems which would allow for faster identification of foreign terrorist fighters, including those connected to Al-Qaida. At press time, it was unclear how individuals not listed in the 1267/1989 sanctions regime, and who are prevented from traveling on the grounds of this resolution, would be able to challenge the quality of the information under which they were prevented from travelling. It is unclear if issues around due process emerge in the future how this will be dealt with.
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