The current reform agenda and identified priorities of the United Nations (UN) Secretary-General present a timely and important opportunity to reassess, strengthen, and develop the UN’s pivotal role in inter alia counter-terrorist responses. In particular, it is essential that this agenda is not limited solely or principally to institutional and procedural aspects of the UN’s architecture, but rather that equal focus is given to its substantive elements. Both are important and inherently related -- measures to strengthen one limb will not achieve their full potential and reach without corresponding and parallel efforts being afforded to the other. Drawing upon the recent findings and recommendations of a 3 year multi-national and multi-disciplinary project which examined what the rule of law means in the specific context of counter-terrorism, this report has sought to continue the process of more clearly identifying and specifying particular elements of the substantive rule of law framework within which counter-terrorist responses should occur, and which it is believed should form an important part of this reform process. A recurring theme throughout is the critical and increased role that the UN could play here -- in particular the General Assembly and Security Council -- to bring greater coherence, clarity, and certainty to the counter-terrorist responses of both states and international organizations, in particular in terms of standard setting and norm development. First, it has sought to more clearly define the parameters and related norms of the international rule of law framework, not least in the absence of universal agreement regarding the exact meaning of the concept of the rule of law. The correct starting point is believed to be the UN Global Counter-Terrorism Strategy 2006, which benefits from universal consensus as a UN General Assembly resolution, at least in theory if not always in practice. This identifies obligations under the UN Charter, international human rights, humanitarian, refugee, and criminal law as important elements of the applicable framework. The underpinning principles, though, are believed to be much wider, incorporating other principles such as those of legality, necessity, proportionality, equality, non-discrimination, democracy, due process, state and institutional responsibility for wrongful acts, and due diligence. Second, it has sought to add substantive meaning to the concept of prevention which underpins important aspects of the UN Secretary-General’s identified priorities yet is without definition or articulated substantive parameters. Through considering recent examples of practices that states and the UN have sought to bring under the umbrella of prevention -- ranging from UN imposed sanctions, to reliance upon anti-terrorist legislation, administrative detention, military courts and commissions, questionable interrogation methods, targeted killing, and expulsions -- related rule of law constraints and concerns have been identified. In doing so, it is hoped that these might further inform and encourage the UN -- not least the law-making activities of the General Assembly in relation to counter-terrorist matters of pressing rule of law concern -- in establishing clearer parameters and identifying related norms for prevention and preventive responses, in particular when the line is crossed from legality to illegality, and what the international community considers to be legitimate and illegitimate. The final key area considered were trends at the national, regional, and international levels towards increasing the accountability of and reducing existing impunity gaps for not only non-state terrorist actors, but also states and institutional actors in their counter-terrorist responses, to ensure appropriate criminal and civil avenues of justice and reparation for their respective victims. These include both judicial and non-judicial mechanisms, not least due to the inherent limitations of both. With respect to the courts, whilst they remain pragmatic regarding the difficulties facing states in meeting security imperatives, especially by affording them a significant degree of discretion in determining when a public state of emergency exists, nevertheless they remain resolute that states must act in accordance with their rule of law obligations regardless of the severity of the threat. Non-judicial mechanisms play an important part also, such as parliamentary oversight; human rights bodies and experts; and the Office of Ombudsperson to the Security Council’s 1267 sanctions regime, although concerns remain here also, including in terms of determining and affording acceptable standards of due process in administrative proceedings. Furthermore, a significant rule of law limitation of both judicial and non-judicial mechanisms remains overcoming some of the practical obstacles, such as the challenge of obtaining adequate levels of disclosure by executives of security sensitive materials. There are a number of ways in which the UN could inform and improve these processes, not only at the rhetorical level, but also through the development of soft law and hard law including treaty making.
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Open Access
Feb 8, 2024
Dharshan Weerasekera 
