Security Council’s counter-terrorism measures lack legal basis, says UN expert

NEW YORK (26 October 2010) – UN Special Rapporteur on counter-terrorism and human rights, Martin Scheinin, has told the General Assembly that the counter-terrorism regime created by the Security Council is outside the scope of its powers.

Presenting his yearly report* today, the Special Rapporteur said that obligations in countering terrorism imposed on Member States by Security Council resolution 1373 (2001) “amount to a quasi-legislative measure that is unlimited in time and space.”

“It has become detached from a concrete conflict situation which Chapter VII of the Charter foresees and continues to pose risks to the protection of human rights and international rule of law,” he said.

Scheinin argued that it is problematic to impose binding permanent obligations for acts of terrorism which have not yet taken place because there is no universally accepted and precise definition of terrorism. He also noted that the rapid progress made in State ratifications of the International Convention for the Suppression of the Financing of Terrorism has, since 2001, provided a proper legal basis for States’ obligations in this field and made redundant the use of Chapter VII powers for the same purpose.

Equally problematic, the human rights expert said, is the Al-Qaida and Taliban sanctions regime initiated by Security Council resolution 1267 (1999) as a reaction to a concrete threat to the peace but subsequently expanded into an open-ended system of sanctions without a link to a specific territory or State.

While welcoming steps taken by the Security Council to reform the terrorist listing and de-listing procedures, including the establishment of the Office of the delisting Ombudsperson in 2009, Scheinin noted that rights of due process remain at stake. His view on the continuous lack of procedural fairness has recently been confirmed by a decision of the European Union General Court of 30 September 2010.

“It is essential that listed individuals and entities have access to domestic courts to challenge any measure implementing the sanctions that are the result of political decisions taken by diplomats,” he stated.

The Special Rapporteur recommends to the Security Council replacing the regimes created by resolutions 1373 (2001) and 1267 (1999) with a single resolution that does not carry the binding legal force of Chapter VII of the UN Charter. This would place counter-terrorism measures and reporting obligations of States under one framework. Such a resolution should include explicit human rights provisions and reaffirm the obligation on the United Nations to comply with international human rights law.

The listing of individuals by name at United Nations level, he says, should be replaced by advice and assistance to Member States, including on due process guarantees in maintaining and reporting on national terrorist lists.

The Special Rapporteur observed that the United Nations Global Counter-terrorism Strategy adopted by the General Assembly provides a solid basis for the reforms he is proposing as it contains respect for human rights and the rule of law as one of its pillars.

He emphasized that counter-terrorism measures and the protection of human rights are not contradictory.

“The defence of human rights renders counter-terrorism efforts by States even more effective. Violations of human rights by States are only conducive to providing breading grounds for more terrorism,” he said.

Martin Scheinin was appointed Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism by the United Nations Commission on Human Rights in August 2005. The mandate was renewed by the Human Rights Council in December 2007. As Special Rapporteur he is independent from any Government and serves in his individual capacity. Martin Scheinin is Professor of Public International Law at the European University Institute in Florence, Italy.

(*): Check the full report: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/478/27/PDF/N1047827.pdf?OpenElement

Learn more about the Special Rapporteur’s mandate and work, log on to: http://www2.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm

UN Global Counter-terrorism Strategy: http://www.un.org/terrorism/resolutions.shtml

For more information and media requests please contact: Mr. Nikolaus Schultz, United Nations Human Rights Officer, cell: +41 79 752 04 85, e-mail: nschultz@ohchr.org; or Mr. Fred Kirungi, United Nations Information Officer, phone: +1 917 367 34 31, e-mail: kirungi@un.org