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УДК 341.48:323.28 DOI: 10.24420/KUI.2018.31.mi4
М.В. Андреев
INTERNATIONAL TERRORISM AS A KEY THREAT TO SECURITY IN THE XXIst CENTURY
МЕЖДУНАРОДНЫЙ ТЕРРОРИЗМ - ОСНОВНАЯ УГРОЗА БЕЗОПАСНОСТИ В XXI ВЕКЕ
Introduction: the article elaborates on contemporary aspects of increasing the effectiveness of international legal mechanisms of countering terrorism as a global threat to peace and security.
Results: different ways of transformation of UN mechanisms are discussed, and many myths about international terrorism and counter-terrorism strategies as reflected in international law doctrines and states' practices are put into question.
Key words: international terrorism, Islamic terrorism, migration crisis in Europe, global and regional security, strengthening of peace and security, contemporary challenges and threats
For citation: Andreev M.V. International terrorism as a key threat to security in the XXI-st century // Bulletin of the Kazan Law Institute of MIA of Russia. 2018. V. 9, № 1. P. 83-92. D01:10.24420/ KUI.2018.31.11114
Введение: в статье раскрываются современные аспекты повышения эффективности международно-правовых механизмов противодействия терроризму как глобальной угрозе миру и безопасности.
Результаты исследования: обосновываются различные пути трансформации механизмов Организации Объединенных Наций, подвергаются сомнению многие «мифы» в отношении международного терроризма и стратегий его пресечения в международно-правовой доктрине и практике отдельных государств.
Ключевые слова: международный терроризм, исламский терроризм, миграционный кризис Европы, глобальная и региональная безопасность, укрепление мира и безопасности, современные вызовы и угрозы
Для цитирования: Андреев М.В. International terrorism as a key threat to security in the XXI-st century // Вестник Казанского юридического института МВД России. 2018. Т. 9, № 1. С. 83-92. DOI: 10.24420/KUI.2018.31.11114
Introduction
Global terrorism is usually considered a key problem of security nowadays. However, terrorism on a national level is nothing new. Terrorism as a method of struggle, especially with scarce resources that different opposition forces have had, has been relatively widespread throughout the history of the world. According to some accounts, the definition of terror was born during the French Revolution - the Jacobin Terror aimed to openly eliminate some people to terrorize the others. There are earlier mentions of terror as well. It has been said that "one of the earliest terrorist groups were sicarii, a well-organized sect in Palestine in 6673 AD" [1]. Later, in the 11th century, an independent Nizari state formed on the lands of contemporary Iran, and they started actively using terror acts against other states (namely, Seljuk sultanates) - what can be called acts of international terrorism [2, p.172].
Materials and Methods
Terror's - in its Roman meaning "horror" -main function is to intimidate state institutions and societies through extreme means of violence which are accompanied by mass propaganda. Appropriate targets, capable of eliciting mass panic, are chosen. An illustrative example is 9/11, when along with the loss of thousands of lives there was collateral damage -total intimidation of TV viewers around the world. And the attack was envisioned as such, "if the planes crushed into the skyscrapers almost simultaneously, hardly anyone of the camerapersons could shoot that disturbing spectacle" [3, p.127]. A fair evaluation says that "thanks to modern media a person - a TV viewer, a radio listener, a reader, an Internet user - not only feels like he/she is an eyewitness of a terrorist attack, but also in some way like a participant of that tragedy, no matter what was the time or the place" [4].
Terror is not just violence, it's a method of aggressive action, a form of war, where the object of attack are peaceful civilians, not armed forces.
There is a preconception that contemporary terrorist wars are only linked to Islam. In particular, there is this approach, "Terror as a form of resolving tensions between different groups in Islam, and especially in clashes with non-Islamic world, has been a widespread practice within the Shahid concept - a martyr death in a fight against the infidels" [2, p.173]. However, despite the fact that the majority of terrorist attacks are indeed perpetrated by "Muslims" (extreme fundamentalists), we can hardly agree with such a statement. As one of the influential Islamic ideologists Sheikh Abdul Latif Mushtagri said, "Islam doesn't seek a victory by the sword, it won over the sword and prohibited the sword. Quran has always exalted the victory of peace, and everything that is needed from us is self-defense, the defense of our religion, our honor, property, and progeny" [2, p.83].
According to the Islamic concept of the world order war can be waged to:
- repel an act of aggression against the Islamic community;
- restore a violated right (justice);
- guarantee free practice of religion;
- cooperate to create an effective system of peace and security [2, p.82].
With that in mind, it's wrong and dangerous to study terrorism as a specifically Arabian- or Islam-designed phenomenon. The main sources of terrorism around the world are "smoldering" regional and intra-national conflicts, the sides of which, having counterproductive approaches to conflict resolution, obtained opportunities to consolidate because of globalization. As UN Secretary General pointed out in "Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat", "Many terrorist groups have emerged in the context of local or regional violent conflicts, some of which serve as a rallying cry for terrorist leaders in faraway regions. Prolonged unresolved conflicts in particular often create conditions conducive to exploitation by terrorists and as such must not be allowed to fester, however intractable they might seem. In addition, suicide terrorism campaigns often occur in the context of foreign occupation or perceived foreign occupation. It follows that successful conflict resolution efforts and attention to issues arising in the context of foreign occupation or perceived occupation can help to reduce the prevalence of terrorism in the long term"1.
Mass killings of people in some areas or based on their ethnicity (like Jews in the Third Reich), non-
conclusive resolutions for territorial disputes with mixed populations (Kashmir, Karabakh), seeking self-determination (Kurds, Chechens), cultural clashes (Kashmir - Muslims and Hindus, Karabakh - Christians and Muslins, Palestine - Jews and Muslims) - these are all primary sources of terrorism. As we know, the end of the 20th century was full of geopolitical and civilizational shifts (such as the collapses of the USSR and Yugoslavia) and was characterized by an upsurge in regional and intra-national conflicts. Such conflicts are always linked with ensuing years of economic crises, mass migrant unemployment, and orgies of crime. Hence come thousands of volunteers of international terrorism.
However, before 9/11 global community had been rather equanimous towards international terrorism. And only after the horrible attack on America a search started to find solutions, first and foremost effective means of retaliation. International terrorism thus uncovered a number of serious problems.
Results
Firstly, contemporary international law doesn't have a unified approach towards international terrorism. Such a consensus definition is absolutely indispensable to at least qualify actions, choose means (of national or international legal defense) and jurisdiction, and much more. The work on the unified definition of terrorism has been going on for some time now, but to no avail. As far back as in 1972, the UN General Assembly established an ad hoc committee to define terrorism. Professor Ye. G. Lyakhov, who has studied many definitions of terrorism proposed by the committee, opines that those definitions are quite different; some of them mix terrorism with international terrorism, object and subject of a crime; a number of points, such as considering terrorism an international crime, acknowledging its extremely dangerous nature, etc., can be taken into account to work out unified contents of the definition of international terrorism [5]. It must be said that the lack of such definition hasn't allowed including international terrorism into the purview of the International Criminal Court (it only deals with genocide, crimes against humanity, war crimes, and aggression). Today we are dealing with a situation where essentially different actions perpetrated by different sides of a conflict, can be recognized as anti-terrorist operations, on one side, and terrorist acts, on the other side. A good example is Iraqis and their struggle with the occupants from the "anti-Iraq coalition" [6, p.26].
Terrorism is defined as a separate crime in many criminal codes. Russian Crimimal Code defines terrorism as "carrying out of an explosion, arson or other actions intimidating the population, and
1 Uniting Against Terror: Cooperative Nonmilitary Responses to the Global Terrorist Threat. United Nations, A/60/825, 2006. April, 26.
creating the threat of human death, of infliction of significant property damage or the onset of other grave consequences, for the purpose of influencing the taking of a decision by authorities or international organizations, and also the threat of commission of the said actions for the same purposes"1. However, one must admit that this definition is far from ideal. In particular, it doesn't list of the goals which a terrorist attack may pursue. For example, provocations of war, changes in a country's reputations, and many other goals may also take place. It's even more complicated with international terrorism - how to find that thin borderline between national and international terrorism. By perpetrators' identities, by an object of a crime, or by a scale of repercussions? There is no single approach. Moreover, with the progress of globalized society terrorism also changes, and new types and aspects of it appear. For example, according to experts, "norms which regulate new types of terrorism, such as political terrorism, profit-seeking terrorism, cyberterrorism, information terrorism, space terrorism, etc., have not yet been codified" [6, p.38].
Secondly (and mainly), the main question in today's practice of international terrorism is choosing the mechanisms of handling subjects of terrorist activities (means of response, their direction, limits, etc.). Terrorists can only be brought to justice in national courts. However, in cases of international terrorism such criminals (actual and potential perpetrators) are, as rule, outside of the victim state. So, a question of international cooperation arises. In current practice, there are the following international legal mechanisms:
- within universal organizations (primarily through the UN Security Council Counter-Terrorism Committee);
- within regional organizations (OSCE AntiTerrorist Unit, Regional Counter-Terrorism Structure of the Shanghai Cooperation Organization, CIS Anti-Terrorism Center, etc.);
- within regional agreements (Council of Europe Convention on the Prevention of Terrorism, signed by Russia on November 17th, 2005);
- within bilateral formats (workgroups Russia -Germany, Russia - USA, etc.);
- within cooperation ties with specialized organizations (Interpol, FATF, and others).
All these formats imply peaceful international dialog through political and diplomatic efforts. However, after 9/11 the US made their bet on force scenarios of international ties. Formally, the US were justified by the ensuing decisions of the UN Security Council. On September 12th, 2001, the UN said that
it "unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security"2. On September 28th, the UN Security Council reiterated the necessity to fight by all means necessary (including military) with threats to peace and security, as precluded by article 51 of the UN Charter3. But is the right to self-defense so undisputed after such acts of international terrorism?
Article 51 of the UN Charter doesn't define a subject of an armed attack (i. e. it can be a state and a non-state agent), so the right to self-defense can be enacted as a response to attacks from non-state organizations, basically from any group of people. However, it's important to understand against whom and in what measure can these countermeasures be taken. As we know, 15 of the 19 perpetrators of 9/11 attacks were Saudi Arabians, but the military operations were directed against Afghanistan and Iraq without an appropriate decision by the UN Security Council. As a result of such "retaliation" against states, not against people whose guilt had not yet been proved, thousands of innocents have died. No justifications -WMDs, displacement of authoritarian governments, etc. - can serve as excuses, including a legal one. As Ye. M. Primakov said, "no sanctions should be used as means to punish peoples or weapons to overthrow governments" [7]. An adequate but very weighted policy is needed to combat terrorism. An unjustified use of force, especially against peaceful population, can only bring up more terrorists. We can all be witnesses to that - more and more terrorist attacks occur in Iraq every day. It's well-known that the global community has condemned operations of retaliation because they don't have enough legal ground. Yes, the UN Security Council stated the act of aggression and pointed at the possibility of using article 51, but against whom? Obviously, the answer can only be given by the UN Security Council. When there is no link between an attack and a state, military countermeasures of self-defense are unjustified.
Another pertinent problem of effectively combating international terrorism is justifications for preemptive measures. It's often senseless to exact resistance, including with the use of armed forces, after the fact of a terrorist attack. That's where we come to the question of "preemptive self-defense". International law doesn't usually give legal instruments for that; you need a direct armed attack to enact an enforced retaliation. However, today many states retain the right for
1 Criminal Code of the Russian Federation. Chapter 23, article 205.
2 United Nations Security Council Resolution 1368, 12th September 2001.
3 United Nations Security Council Resolution 1373, 28th September 2001.
preemptive action. President Vladimir Putin has also sad that Russia can execute the right for preemptive strikes against terrorists and their bases, their financial sponsors and ideological masterminds, wherever all those may be situated. Russian operation is Syria is, in essence, a preemptive operation, something that has been many times states by the country's leadership. Syrian state is no limit for the militants - their goal to sow chaos around the world, and primarily where there is resistance against them. It's late to bomb terrorists after terrorists attacked, such as in case with November 13th, 2015, attacks in Paris which took dozens of lives and brought panic. That's a serious problem which needs a resolution. According to the High Panel on Challenges, Threats and Change, article 51 of the UN Charter is the only norm which regulates the right to self-defense and it must not be revised, but there is a need for interpretations of self-defense efforts and arbitrations of disputes.
The UN International Court of Justice opined about the military and paramilitary action against Nicaragua in 1986 that article 51 does not fully cover self-defense (for example, there are no mentions of necessity and proportionality, which are common for international law) [8].
Practical difficulties with preemptive use of force in anti-terrorist measures arise in the following cases:
1. A state announces its right to make a self-defending preemptive strike as a response to an indirect threat.
2. A state creates an external threat (real or potential) to other states or people outside its borders, but the UN Security Council has disagreements about the nature of countermeasures.
3. A situation where a threat is mostly internal, i. e. the danger is threatening to the population of a certain state1.
The High Panel in its report to the UN General Assembly gave an interpretation of article 51: "A state is an object of a threat and can take action if the threat of attack is direct, and no other means can eliminate it, and such action is proportionate with the threat"2. In the same report, the High Panel made an almost contradictory conclusion, "For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted"3. And
that's the only correct approach - existing international laws do not provide any legal basis for the states to use armed forces as a preemptive measure without a relevant permission by the UN Security Council. Many Western experts express an absolutely unacceptable position on this. According to Michael Glennon, after 9/11 two security systems have emerged - the de facto one where states are free to choose means of defense, and the de jure one which, in his opinion, collapsed [9]. We cannot agree with that. However, it is necessary to adapt international law to the existing challenges of international terrorism, and many Russian international researchers agree with that. Alexander Konovalov, President of the Institute of Strategic Estimations and Analysis, said, "We need to think about how to collectively modernize international law. One cannot defeat international terrorism by mere defense. We need to act preemptively"4. Maybe, the modernization of the right to self-defense will be reflected in a proposed Comprehensive Convention on Terrorism, which, unfortunately, has not been adopted yet.
Another contentious question in the problem area of armed response to international terrorism is the implementation of the principle of necessary and proportionate self-defense, which has been more than once mentioned by the UN ICJ as common in international law. It's very complicated to define proportionate measures for retaliation against terrorist attacks. E. G. Gureeva is justly saying that a force necessary to eliminate a terrorist threat "can be much bigger than the one that was used in the terrorist attack. Terrorists often act through a non-interlinked network of cells using financial support which was provided covertly. Furthermore, it's very difficult to influence plans of fanatical terrorists who are ready to die for their cause. Fighting such people is an extremely complex task, which in many cases warrants serious enforcement measures" [6, p. 89]
In the question of the implementation of such countermeasures and in anti-terrorist policies in general, especially by the US, there is another side. For the US's ruling groups the appearance of a new enemy is a good pretext to subdue many countries to their influence and is in a large measure a purely financial calculation. Former US Minister of Justice William R. Clarke said this about the contemporary US's antiterrorist policy, "Globalization has no other motivation than profit. Today, during the time of economic downturn in the US, a war (preferably a large-scale one, but without major human losses) becomes even
1 A More Secure World: Our Shared Responsibility (report by High-Level Panel of Threats, Challenges and Changes). United Nations, A/59/565. P. 67. URL: www.un.org/secureworld (accessed: 06.03.2018).
2 Ibid.
3 Ibid.
4 Results of the NATO-Russia Istanbul Summit. M., 2004. P. 25.
more necessary for the fragile American economy. And you cannot think of something better than the so-called War on Terror in this case" [3, p.233] However ugly that sounds, such a vision also exists. In general, the problem of funding comes on the foreground in the matter of international terrorism today. The global community has concentrated on crushing the channels of such activities. A number of conventions and special protocols against terrorism funding have been adopted. Implementing such measures helped to block the alleged terrorist funds of 112 million USD just in the three months after 9/111. And this is an exceptionally effective way of fighting terrorism. All in all, war on terror should not exceptionally and even predominantly be a war effort per se2. According to V. N. Likhachyov, "a global challenge is the nature of the global terrorism itself, and it warrants sociopolitical, judicial and diplomatic measures which are adequate in forms and resources. The main responsibility for their creation and implementation is on the state structures with support from the civil society"3. Business community must also be involved in this struggle. One timely and effective example is the proposed Strategy for AntiTerrorist Partnership of State and Business, made by G8 with Russia's initiative. There are already realized projects, in particular, a project for raising the effectiveness of international cooperation to suppress contraband of raw precious metals used to finance organized crime and terrorism. The project was initiated by Norilsk Nickel and implemented together with the World Customs Organization, UN Office on Drugs and Crime, UNICRI, and OSCE.
Every terrorist attack is rooted in financial interests of its sponsors. It's worth remembering, however, that some terrorist attacks require relatively small resources.
UN in a fight against international terrorism
President Vladimir Putin said at the UN General Assembly on September 28th, 2015, "We consider all attempts of playing with terrorists to be dangerous. Terrorist threat can consume the world. Militants from different countries, including Europe, receive training in terrorist camps. We cannot allow these cutthroats, who have already tasted blood, returned to their homes and continue their dark deeds there. <...> We offer <...> to unite efforts to solve existing tasks and to create a real wide international anti-terrorist coalition on the basis of international law"4.
It's impossible to comprehensively review all the existing legal forms and methods of the fight with
international terrorism (on regional and national levels) within one research, so we give an analysis of relevant mechanisms on a universal level. Only united efforts can fight with terrorism as a key threat to contemporary international security. The fight with international terrorism started earlier than the 21st century. On the universal level, the League ofNations made the first step by proclaiming terrorism unlawful in 1934. As a result of a wide discussion, Convention for the Prevention and Punishment of Terrorism was adopted but did not come into effect. Since 1963, the global community in the UN and its special institutions has created 13 antiterrorist documents which are open for everyone to join. In December 1994, the General Assembly again turned to the problem of terrorism in its Declaration of Measures to Eliminate International Terrorism (A/RES/49/60). In 1996, the Ad Hoc Committee on Terrorism was established (A/RES/51/210). The General Assembly has since turned to this issue on a regular basis. Within the Committee, its member states have been discussing a comprehensive convention on international terrorism since 2000.
On March 10th, 2005, in the days of the first anniversary of the Madrid Metro attacks and during preparations to the September summit, Secretary General Kofi Annan reported on the results of the High Panel and suggested creating a comprehensive counterterrorism strategy. The strategy should include five main points: dissuading terrorist groups from committing violence; limiting their means of attack; limiting the support of terrorist groups by other countries; developing countries' capacities to prevent terrorism; defending human rights in anti-terrorist activities5. The Global Counter-Terrorism Strategy was adopted in 2006 (A/RES/60/288). Importantly, the Strategy aims to eliminate conditions which help the spread of terrorism. In brief, it offers the following measures:
1. To continue to strengthen and make best possible use of the capacities of the United Nations in areas such as conflict prevention, negotiation, mediation, conciliation, judicial settlement, rule of law, peacekeeping and peacebuilding,
2. To continue to arrange under the auspices of the United Nations initiatives and programmes to promote dialogue, tolerance and understanding among civilizations, cultures, peoples and religions, and to promote mutual respect for and
prevent the defamation of religions, religious values, beliefs and cultures.
1 A More Secure World: Our Shared Responsibility. P. 56.
2 Pro et Contra: Discussing Option in Protecting Euro-Atlantic Security. Brussels: NATO, 2004. P. 13.
3 OON i bor'ba s mezhdunarodnym terrorizmom. M.: Council of the Federation, 2006. P. 7.
4 URL: https://lenta.ru/articles/2015/09/28/un_putin/ (accessed: 06.03.2018).
5 URL: http://www.un.org/russian/terrorism/framework.shtml (accessed: 06.03.2018).
3. To promote a culture of peace, justice and human development, ethnic, national and religious tolerance and respect for all religions, religious values, beliefs or cultures by establishing and encouraging, as appropriate, education and public awareness programmers involving all sectors of society.
4. To continue to work to adopt such measures as may be necessary and appropriate and in accordance with our respective obligations under international law to prohibit by law incitement to commit a terrorist act or acts and prevent such conduct.
5. To reiterate our determination to ensure the timely and full realization of the development goals and objectives agreed at the major United Nations conferences and summits, including the Millennium Development Goals.
6. To pursue and reinforce development and social inclusion agendas at every level as goals in themselves, recognizing that success in this area, especially on youth unemployment, could reduce marginalization and the subsequent sense of victimization that propels extremism and the recruitment of terrorists;
7. To encourage the United Nations system as a whole to scale up the cooperation and assistance it is already conducting in the fields of rule of law, human rights and good governance to support sustained economic and social development.
8. To consider putting in place, on a voluntary basis, national systems of assistance that would promote the needs of victims of terrorism and their families and facilitate the normalization of their lives.
Measures to prevent and combat terrorism:
1. To refrain from organizing, instigating, facilitating, participating in, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that our respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens;
2. To cooperate fully in the fight against terrorism, in accordance with our obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or perpetration of terrorist acts or provides safe havens;
3. To ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accordance with the relevant provisions of national and international law, in particular human rights law, refugee law and international humanitarian law. We will endeavour to conclude and implement to that effect mutual judicial assistance and extradition
agreements and to strengthen cooperation between law enforcement agencies;
4. To intensify cooperation, as appropriate, in exchanging timely and accurate information concerning the prevention and combating of terrorism;
5. To strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including drug trafficking in all its aspects, illicit arms trade, in particular of small arms and light weapons, including man-portable air defence systems, money-laundering and smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials;
6. To consider becoming parties without delay to the United Nations Convention against Transnational Organized Crime and to the three protocols supplementing it and implementing them;
7. To take appropriate measures, before granting asylum, for the purpose of ensuring that the asylum-seeker has not engaged in terrorist activities and, after granting asylum, for the purpose of ensuring that the refugee status is not used in a manner contrary to the provisions set out in section II, paragraph 1, above;
8. To encourage relevant regional and subregional organizations to create or strengthen counter-terrorism mechanisms or centres. Should they require cooperation and assistance to this end, we encourage the Counter-Terrorism Committee and its Executive Directorate and, where consistent with their existing mandates, the United Nations Office on Drugs and Crime and the International Criminal Police Organization, to facilitate its provision;
9. To acknowledge that the question of creating an international centre to fight terrorism could be considered, as part of international efforts to enhance the fight against terrorism;
10. To encourage States to implement the comprehensive international standards embodied in the Forty Recommendations on Money-Laundering and Nine Special Recommendations on Terrorist Financing of the Financial Action Task Force, recognizing that States may require assistance in implementing them;
11. To invite the United Nations system to develop, together with Member States, a single comprehensive database on biological incidents, ensuring that it is complementary to the biocrimes database contemplated by the International Criminal Police Organization. We also encourage the Secretary-General to update the roster of experts and laboratories, as well as the technical guidelines and procedures, available to him for the timely and efficient investigation of alleged use. In addition, we note the importance of the proposal of the Secretary-General to bring together, within the framework of the United Nations, the major biotechnology stakeholders, including industry, the
scientific community, civil society and Governments, into a common programme aimed at ensuring that biotechnology advances are not used for terrorist or other criminal purposes but for the public good, with due respect for the basic international norms on intellectual property rights;
12. To work with the United Nations with due regard to confidentiality, respecting human rights and in compliance with other obligations under international law, to explore ways and means to:
(a) Coordinate efforts at the international and regional levels to counter
terrorism in all its forms and manifestations on the Internet;
(b) Use the Internet as a tool for countering the spread of terrorism, while
recognizing that States may require assistance in this regard;
13. To step up national efforts and bilateral, subregional, regional and international cooperation, as appropriate, to improve border and customs controls in order to prevent and detect the movement of terrorists and prevent and detect the illicit traffic in, inter alia, small arms and light weapons, conventional ammunition and explosives, and nuclear, chemical, biological or radiological weapons and materials, while recognizing that States may require assistance to that effect;
14. To encourage the Counter-Terrorism Committee and its Executive Directorate to continue to work with States, at their request, to facilitate the adoption of legislation and administrative measures to implement the terrorist travel-related obligations and to identify best practices in this area, drawing whenever possible on those developed by technical international organizations, such as the International Civil Aviation Organization, the World Customs Organization and the International Criminal Police Organization;
15. To encourage the Committee established pursuant to Security Council resolution 1267 (1999) to continue to work to strengthen the effectiveness of the travel ban under the United Nations sanctions regime against Al-Qaida and the Taliban and associated individuals and entities, as well as to ensure, as a matter of priority, that fair and transparent procedures exist for placing individuals and entities on its lists, for removing them and for granting humanitarian exceptions. In this regard, we encourage States to share information, including by widely distributing the International Criminal Police Organization/United Nations special notices concerning people subject to this sanctions regime;
16. To step up efforts and cooperation at every level, as appropriate, to improve the security of manufacturing and issuing identity and travel documents and to prevent and detect their alteration or fraudulent use, while recognizing that States may require assistance in doing so. In this regard, we invite the International Criminal Police Organization to enhance its database on stolen and lost travel documents, and we will endeavour to make full use of this tool, as appropriate, in particular by sharing relevant information;
17. To invite the United Nations to improve coordination in planning a response to a terrorist attack using nuclear, chemical, biological or radiological weapons or materials, in particular by reviewing and improving the effectiveness of the existing inter-agency coordination mechanisms for assistance delivery, relief operations and victim support, so that all States can receive adequate assistance. In this regard, we invite the General Assembly and the Security Council to develop guidelines for the necessary cooperation and assistance in the event of a terrorist attack using weapons of mass destruction;
18. To step up all efforts to improve the security and protection of particularly vulnerable targets, such as infrastructure and public places, as well as the response to terrorist attacks and other disasters, in particular in the area of civil protection, while recognizing that States may require assistance to this effect1.
Aside from the Global Counter-Terrorism Strategy, the UN also adopted 13 other documents on the fight with terrorism;
1. The Convention on Offences and Certain Other Acts Committed on Board Aircraft, or the Tokyo Convention (1963). The Convention is applicable to offences against penal law and to any acts jeopardizing the safety of persons or property on board civilian aircraft while in-flight and engaged in international air navigation. Coverage includes the commission of or the intention to commit offences and certain other acts on board aircraft registered in a Contracting State in-flight over the high seas and any other areas beyond the territory of any State in addition to the airspace belonging to any Contracting State. Criminal jurisdiction may be exercised by Contracting States other than the State of Registry under limited conditions, viz, when the exercise of jurisdiction is required under multilateral international obligations, in the interest of national security, and so forth. The Convention, for the first time in the history of international aviation law, recognises certain powers and immunities of the aircraft commander who on international flights may restrain any person(s) he has reasonable cause to believe
1 Counter-Terrorism Implementation Task Force (A/RES/60/288). URL: http://www.un.org/russian/terrorism/trategy_ctionplan.shtml (accessed: 06.03.2018).
is committing or is about to commit an offence liable to interfere with the safety of persons or property on board or who is jeopardising good order and discipline.
2. The Convention for the Suppression of Unlawful Seizure of Aircraft, or the Hague Hijacking Convention (1970) is a multilateral treaty by which states agree to prohibit and punish aircraft hijacking. The convention does not apply to customs, law enforcement or military aircraft, thus it applies exclusively to civilian aircraft. The convention only addresses situations in which an aircraft takes off or lands in a place different from its country of registration. The convention sets out the principle of aut dedere aut judicare - that a party to the treaty must prosecute an aircraft hijacker if no other state requests his or her extradition for prosecution of the same crime.
3. The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, or the Montreal Convention (1971), criminalises the following behaviour:
committing an act of violence against a person on board an aircraft in flight if it is likely to endanger the safety of the aircraft;
destroying an aircraft being serviced or damaging such an aircraft in such a way that renders it incapable of flight or which is likely to endanger its safety in flight;
placing or causing to be placed on an aircraft a device or substance which is likely to destroy or cause damage to an aircraft;
destroying or damaging air navigation facilities or interfering with their operation if it is likely to endanger the safety of aircraft;
communicating information which is known to be false, thereby endangering the safety of an aircraft in flight;
attempting any of 1-5; and
being an accomplice to any of 1-6.
4. The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973), including Diplomatic Agents is an anti-terrorism treaty that codifies some of the traditional principles on the necessity of protecting diplomats. Parties to the convention agree to criminalise the commission of murders or kidnappings of internationally protected persons as well as violent attacks against the official premises, private accommodation, or means of transport of such persons. Parties to the convention also agree to criminalise the attempted commission or threatened commission of such acts. "Internationally protected persons" is a term created by the convention, and refers explicitly to heads of state, heads of government, foreign ministers, ambassadors, other official diplomats, and members of their families.
5. The International Convention against the Taking of Hostages (1979) is a treaty by which states agree to prohibit and punish hostage taking. The treaty includes definitions of "hostage" and "hostage taking" and sets out the principle of aut dedere aut judicare: a party to the treaty must prosecute a hostage taker if no other state requests extradition for prosecution of the same crime.
6. The Convention on the Physical Protection of Nuclear Material was adopted on 26 October 1979 in Vienna, Austria. It pertains to the unlawful seizure of nuclear material, enacts criminal liability for unlawful ownership, use, handover, or theft of nuclear material and threats to use nuclear material to kill, maim, or destroy property. The initial signing ceremony took place in Vienna and at New York on 3 March 1980, and the convention entered into force on 8 February 1987. The convention is deposited with the International Atomic Energy Agency. In July 2005 a diplomatic conference was convened to amend the Convention and strengthen its provisions, as a result of which it was renamed the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities.
7. On 24 February 1988 in Montreal, the Protocol for the Suppression of Unlawful Acts of Violence at Airports serving International Civil Aviation was signed as a supplement to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The Protocol makes it an offence to commit similarly violent, dangerous, or damaging acts in airports that serve civil aviation.
8. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) or Sua Act is a multilateral treaty by which states agree to prohibit and punish behavior which may threaten the safety of maritime navigation. In London on 14 October 2005, a second supplementary Protocol to SUA was concluded. The full name of the Protocol is the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and is often abbreviated as "SUA 2005". The 2005 Protocol adds provisions which criminalize the use of ships to transfer or discharge biological, chemical, or nuclear weapons. (However, the Protocol specifies that transporting nuclear materials is not an offence if it is transported to or from the territory or under the control of a state party to the Treaty on the Non-Proliferation of Nuclear Weapons.) It also prohibits ships from discharging oil, liquefied natural gas, radioactive materials, or other hazardous or noxious substances in quantities or concentrations that are likely to cause death or serious injury or damage. Finally, it prohibits the use of such weapons or substances against ships involved in maritime navigation.
9. The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988) is a multilateral treaty by which states agree to prohibit and punish behavior which may threaten the safety of offshore fixed platforms, including oil platforms.
10. The Convention on the Marking of Plastic Explosives for the Purpose of Detection is a multilateral anti-terrorism treaty that aims to prohibit and prevent the manufacture or storage of unmarked plastic explosives. A state that ratifies the Convention agrees to prohibit the manufacture, storage, transport, or entry of unmarked plastic explosives in its territory. Plastic explosives are not prohibited by the treaty, but it mandates that when they are produced they are marked with a chemical taggant (specified in the treaty's Technical Annex) which can facilitate future identification purposes. The Convention also establishes an International Explosives Technical Commission, which is composed of experts in the field explosives manufacturing and detection. The Commission can propose amendments to the Technical Annex of the treaty.
11. The Terrorist Bombings Convention (formally the International Convention for the Suppression of Terrorist Bombings) is a 1997 United Nations treaty designed to criminalize terrorist bombings. The convention describes terrorist bombings as the unlawful and intentional use of explosives in public places with intention to kill, to injure, or to cause extensive destruction to compel a government or an international organization to do or to abstain from doing some act. The convention also seeks to promote police and judicial co-operation to prevent, investigate and punish those acts.
12. The Terrorist Financing Convention (formally, the International Convention for the Suppression of the Financing of Terrorism) is a 1999 United Nations treaty designed to criminalize acts of financing acts of terrorism. The convention also seeks to promote police and judicial co-operation to prevent, investigate and punish the financing of such acts. As of July 2015, the treaty has been ratified by 187 states; in terms of universality, it is therefore one of the most successful anti-terrorism treaties in history. Article 2.1 defines the crime of terrorist financing as the offense committed by "any person" who "by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out" an act "intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act".
13. The Nuclear Terrorism Convention (formally, the International Convention for the Suppression of Acts of Nuclear Terrorism) is a 2005 United Nations treaty designed to criminalize acts of nuclear terrorism and to promote police and judicial cooperation to prevent, investigate and punish those acts. As of September 2016, the convention has 115 signatories and 106 state parties, including the nuclear powers China, France, India, Russia, the United Kingdom, and the United States. The Convention covers a broad range of acts and possible targets, including nuclear power plants and nuclear reactors; covers threats and attempts to commit such crimes or to participate in them, as an accomplice; stipulates that offenders shall be either extradited or prosecuted; encourages States to cooperate in preventing terrorist attacks by sharing information and assisting each other in connection with criminal investigations and extradition proceedings; and, deals with both crisis situations, assisting States to solve the situations and post-crisis situations by rendering nuclear material safe through the International Atomic Energy Agency (IAEA).
Almost all the UN bodies and all its special institutions are involved in a joint mission of fighting terrorism. However, the main coordinating and mobilizing role belongs, of course, to the Security Council, which bears the main responsibility for the maintenance of international peace and stability.
The Security Council has been engaged in the problem of terrorism since the early 1990s. In that period, it adopted a number of sanctions against states which were suspected in ties with terrorists: Libya in 1992, Sudan in 1996, and Afghanistan (Taliban in 1999 and Al-Qaeda in 2000).
Before 9/11, the Security Council established an influential counter-terrorism body, the 1267 Committee. It was tasked with maintaining sanctions against Taliban (and Al-Qaeda since 2000). Per the Security Council's request, to support the committee's work the Secretary General created the Analytical Support and Sanctions Monitoring Team. After 9/11, resolution 1373 established the Counter-Terrorism Committee which includes all the members of the Security Council. The resolution calls for all the member states to adopt measures to prevent terrorist activities and to outlaw various forms of terrorist activities. Resolution 1535 (adopted in 2004) established the Counter-Terrorism Committee Executive Directorate tasked with overseeing the implementation of revolution 1373 and providing technical assistance to the member states. In 2004, resolution 1540 created the 1540 Committee, also including all the Security Council members. The
Committee monitors the implementation of resolution 1540 which calls for the prevention of access to the weapons of mass destruction by non-state entities (including terrorist groups)1.
Discussion and Conclusions In conclusion, we'd like to return once again to the problem of political and legal means of terrorism prevention. The abovementioned arsenal of legal norms and institutes of terrorism prevention is a very important component of an effective fight against that phenomenon. Importantly, the fight with terrorism has become universal in the last decade; aside from almost all of the state authorities in the world, civil society institutions and business have also joined this fight. Especially in the last years, serious attention is given to not only the fight with terrorism per se, but also to preventing conditions which potentially lead to the emergence of terrorism. However, it must be
stated that, unfortunately, these important efforts by the international community will be in vain if the states don't solve their main problems. Among them, in our opinion, are the following:
- agreeing on a universal definition of international terrorism;
- appointing an international judicial jurisdiction on this crime;
- working out the criteria of necessity and proportionality in the struggle with terrorism as an act of self-defense;
- agreeing on conditions of possible preemptive actions.
Many of these issues can be resolved through the adoption of a comprehensive convention on the fight with international terrorism; such adoption should become a big progressive step towards a safer world order.
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Об авторе: Андреев Максим Валентинович, доктор юридических наук, доцент, профессор кафедры государственно-правовых дисциплин Казанского юридического института МВД России. e-mail: [email protected] © Андреев М.В., 2018
Статья получена: 05.03.2018. Статья принята к публикации: 15.03.2018. Статья опубликована онлайн: 20.03.2018.
About the author: Andreev Maksim V, Dr. habil. of Law, Associate Professor, Professor at the Department of State and Legal Disciplines of the Kazan Law Institute of the Ministry of Internal affairs of the Russian Federation e-mail: [email protected]
Автор прочитал и одобрил окончательный вариант рукописи. The author has read and approved the final version of the manuscript.
1 URL: http://www.un.org/russian/terrorism/securitycouncil.shtml (accessed: 06.03.2018).
