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 dicted terrorists to justice. 39 Resolution 1267 ordered the Taliban to turn over Osama bin Laden to authorities in a state where he had been indicted, such as the United States, or to another state where he would be arrested and prosecuted. It banned flights to Afghanistan, directed states to freeze funds that related to properties owned by the Taliban, and created a committee to oversee implementation of these sanctions. These measures were augmented by Resolution 1333 of December 2000, which included sanctions against the sale of military equipment to the Taliban. 40 The sanctions regime created under Resolution 1267 has continued to function following the overthrow of the Taliban, by targeting specific individuals and entities for sanctions regardless of their physical whereabouts. All states are required to freeze the assets, prevent transit through their territory, and prevent the supply of arms and military equipment to individuals and entities designated by a Security Council committee established for this purpose (the “1267 Committee”). 41 The 1267 Committee, comprised of all Security Council members, maintains and updates the list of Taliban or Al Qaeda-related individuals and entities that are subject to sanctions, and monitors state compliance with these sanctions. (2) Post-9/11 The September 11, 2001 terrorist attacks brought a new level of urgency to the issue of terrorism in the United States and the United Nations. The UN Security Council responded to the September 11 attacks in Resolution 1368, passed the following day. The Security Council has the authority to take actions including authorizing use of military force to respond to threats to peace and security, and Resolution 1368 noted the Security Council’s “readiness to take all necessary steps” to respond to the attacks. The resolution also recognized “the inherent right of individual or collective self-defence in accordance with the [UN] Charter,” thus reaffirming the principle articulated in UN Charter Article 51 that “[n]othing in the...Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” When the United States invaded Afghanistan in its search for the perpetrators of the 9/11 attacks, it did not request authorization from the Security Council. This decision was gener- 39. S.C. Res. 1267, U.N. SCOR, 54 th Sess., 4051 st mtg., U.N. Doc. S/Res/1267 (1999). 40. S.C. Res. 1333, U.N. SCOR, 55 th Sess., 4251 st mtg., U.N. Doc. S/Res/1333 (2000). 41. S.C. Resolutions 1267 (1999), 1333 (2000), 1390 (2002), 1455 (2003). T H E R E C O R D 34
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 ally accepted as consistent with this right to self-defense and the terms of Resolution 1368. The most far-reaching Security Council response to the 9/11 terrorist attacks was adopted on September 28, 2001 at the behest of the United States. Resolution 1373 requires all states to take a series of actions: criminalize the act of providing or collecting funds to be used to carry out terrorist attacks; freeze all funds of individuals or entities with ties to terrorist activities; refrain from supporting entities or persons involved with terrorism, including the elimination of the supply of weapons to terrorists; and deny terrorists safe haven and ensure their prosecution. As described by John Negroponte, the U.S. Ambassador to the United Nations at the time the resolution passed, Resolution 1373 “generat[ed] a worldwide juridical transformation.” 42 Unlike the twelve terrorism conventions, which are only binding on states that ratify them, Resolution 1373, as a decision of the Security Council, binds all states. 43 As a result, all states, regardless of whether they had consented to do so in any of the terrorism treaties, are by virtue of Resolution 1373 obligated “to prevent and suppress terrorist attacks and take action against perpetrators of such attacks” and to transform their national legislation to criminalize terrorist financing. The obligations set forth in Resolution 1373 are of unlimited duration and can only be terminated by a subsequent Security Council resolution. 44 As described by one international legal scholar, with Resolution 1373, “the United Nations Security Council broke new ground by using, for the first time, its Chapter VII powers under the Charter to order all states to take or to refrain from specified actions in a context not limited to disciplining a particular country.” 45 Resolution 1373 ushered in a new era for the Security Council acting as global lawmaking body. In April 2004, the Security Council passed Resolution 1540, which requires states to adopt laws and other control measures to prevent the acquisition of weapons of mass destruction by nonstate actors, discussed in Part V. 46 Like Resolution 1373, it establishes a sub- 42. ‘We Must Not Fall Into Complacency’ in Fight Against Terrorism, Prime Minister of Spain Tells Council, United Nations Press Release, Security Council, 4752 nd mtg., U.N. Doc. SC/ 7754 (2003). 43. UN Charter, Art. 25 requires all UN Members to “agree to accept and carry out the decision of the Security Council in accordance with the present Charter.” 44. Ilias Bantekas, The International Law of Terrorist Financing, 97 AM. J. INT’L L. 315, 326 (2003). 45. Paul Szasz, The Security Council Starts Legislating, 96 AM. J. INT’L L. 901, 901 (2002). 46. S.C. Res. 1540, U.N. SCOR, 58 th Sess., 4956 th mtg., U.N. Doc. S/Res/1540 (2004). 2 0 0 7 V O L. 6 2 , N O. 1 35
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2007 Issue 1 - New York City Bar Association

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