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

An independent United Nations human rights expert said today that the regime created by the Security Council to counter terrorism is outside the scope of its powers, and called on the 15-member body to systematize its counter-terrorism measures and reporting duties of States under one framework rather than several resolutions.

Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that obligations in countering terrorism imposed on Member States by Security Council resolution 1373, adopted in the wake of the 11 September 2001 terrorist attacks in the United States, “amount to a quasi-legislative measure that is unlimited in time and space.”

In his yearly report, which he presented to the General Assembly yesterday, Mr. Scheinin stated that whatever justification the Council may have had in September 2001 for adopting the resolution, “its continued application nine years later cannot be seen as a proper response to a specific threat to international peace and security.

“Resolution 1373 (2001) goes beyond the powers conferred upon the Security Council and continues to pose risks to the protection of a number of international human rights standards,” he wrote.

Mr. Scheinin, a Finnish professor with extensive knowledge and practice in public international law and human rights law who was appointed as Special Rapporteur in July 2005, 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 cited problems with the Al-Qaida and Taliban sanctions regime initiated by Council resolution 1267 of 1999, which he told reporters at a news conference in New York were introduced 11 years ago as “a form of smart sanctions against a defined group of persons, and limited in time and space.

“They were justified with reference to a concrete threat to peace from the side of the de facto regime in Afghanistan, and the concrete aim of compelling the Taliban to hand over terrorist leader Osama bin Laden,” he said.

“While resolution 1267 (1999) could be seen as a temporary emergency measure by the Security Council,” he added, “using its Chapter VII powers to maintain a permanent list of terrorist individuals and entities anywhere in the world and to impose its application upon all Member States as a legally binding Charter obligation goes beyond the powers of the Security Council.”

While welcoming steps taken by the Council to reform the terrorist listing and de-listing procedures, including the establishment of the Office of the delisting Ombudsperson in 2009, Mr. Scheinin noted that rights of due process remain at stake.

“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, who wraps up his duties next July, called on the Council to seize the opportunity of the approaching tenth anniversary of resolution 1373 to replace that resolution and 1267 with a single resolution – not adopted under Chapter VII of the Charter – to systematize the counter-terrorism measures and reporting duties of States under one framework.

Such a resolution should include explicit human rights provisions and reaffirm the obligation on the UN to comply with international human rights law, he added.

“Instead of itself listing terrorists the UN would provide advice and assistance, including in collecting evidence, for States so that they could do it properly,” he told the Assembly.

Mr. Scheinin noted that, as reaffirmed in the UN Global Counter-terrorism Strategy adopted by the Assembly, effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.

“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.

Mr. Scheinin reports to the Geneva-based UN Human Rights Council in an independent and unpaid capacity.