2007 Issue 1 - New York City Bar Association

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I N T E R N A T I O N A L S E C U R I T Y A F F A I R S That resolution did not even condemn terrorism, and it was not until 1985 that the GA passed a resolution unequivocally condemning “as criminal, all acts, methods and practices of terrorism wherever and by whomever committed.” 32 In 2005, efforts to reach a definition on terrorism were re-energized as part of the UN reform process leading to a 2005 summit of world leaders. The Secretary-General and a panel of high-level experts convened for the purpose of making recommendations on global security challenges both urged that a definition of terrorism be included in the Summit outcome. 33 Negotiations were not successful in reaching an agreement on a definition of terrorism. Instead, the 2005 Summit Outcome Document “condemned terrorism in all its forms” and stressed “the need to make every effort to reach an agreement on and conclude a comprehensive convention on international terrorism during the sixtieth session of the General Assembly.” 34 The Security Council, especially since the September 11 attacks, has also condemned terrorism on numerous occasions and worked towards a definition as well. In 2004, Security Council Resolution 1566 stated that “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature ….” 35 While the General Assembly and the Security Council have condemned terrorism regardless of its motives, there are many member states that oppose 27/3034 (1972), cited in Malvina Halberstam, The Evolution of the United Nations Position on Terrorism: From Exempting National Liberation Movements to Criminalizing Terrorism Wherever and by Whomever Committed, 41 COLUM. J. TRANSNAT’L L. 573, 574 (2003). 32. G.A. Res. 40/61, U.N. GAOR, 40th Sess., 108th plen. mtg., para. 1, U.N. Doc A/RES/40/ 61 (1985), cited in Halberstam, supra note 31 at 575. 33. See, e.g., In Larger Freedom: Toward Development, Security and Human Rights for All, Report of the Secretary-General 91 (United Nations 2005); Stephen Stedman, A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change 163 (United Nations 2004). 34. World Summit Outcome, 81, 83. 35. S.C. Res. 1566, U.N. SCOR, 59 th Sess., 5053 rd mtg., U.N. Doc. S/Res/1566 (2005). T H E R E C O R D 32
P R E V E N T I O N A N D P R O S E C U T I O N O F T E R R O R I S T A C T S this construct of terrorism as unfairly imposed by powerful states and in ignorance of the types of “terrorism” that powerful states wage on repressed states. Libya raised this issue in the 2001 General Assembly debates, speaking on behalf of the Arab Group: We cannot condemn terrorism and fight it when it hits one country and turn a blind eye when it hits other countries. It is unacceptable to label as terrorism the struggle of peoples to protect themselves or to attain their independence, while at the same time ignoring real terrorism and its many faces— such as occupation... 36 It is this fundamental disagreement that poses a serious obstacle to achieving a definition. 37 Nevertheless, progress has been made since 9/11 to develop a system to improve states’ capacity to prevent and prosecute terrorist acts, particularly through rules imposed by the Security Council. (C) Security Council Resolutions (1) Pre-9/11 The Security Council is uniquely qualified to respond to terrorism and to require states to take measures addressing terrorism. Under Chapter VII of the UN Charter, once the Security Council determines the existence of a threat to international peace and security—and the Council has determined that acts of international terrorism do constitute such a threat 38 — states are required to comply with the measures that the Security Council determines are appropriate to meet this threat. In addition to condemning certain specific acts of terrorism, the Security Council has passed a number of resolutions aimed at denying certain individuals and groups the means to carry out terrorist acts and requiring states to take action against such individuals and groups. For example, Resolution 1267 called for Afghanistan’s Taliban regime to stop providing sanctuary and training for international terrorists and to cooperate with efforts to bring in- 36. Calls for Resolute Action Against Terrorism Tempered in Assembly by Appeals for Caution in Identifying ‘Enemy,’ U.N. GAOR, 56th Sess., 49th plen. mtg. U.N. Doc. GA/9962 (2001), cited in Aaron J. Noteboom, Terrorism, I Know It When I See It, 81 OR. L. REV. 553, 565 (2002). 37. Cf. Nicholas Rostow, Before and After: The Changed UN Response to Terrorism Since September 11 th , 35 CORNELL INT’L L.J. 475, 489 (2002), arguing that it is unlikely consensus will be achieved until the conflicts in the Middle East and over Kashmir are resolved. 38. See, e.g., S.C. Res. 1373. 2 0 0 7 V O L. 6 2 , N O. 1 33
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2007 Issue 1 - New York City Bar Association

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