(Eric Rosand is a senior fellow at the Center on Global Counterterrorism Cooperation in New York and a nonresident fellow at New York University’s Center on International Cooperation).
Since one of the questions in the prompt asked whether “our laws — or international law” [emphasis added] are capable of addressing the threat, I thought I would weigh in the international law side of the question.
The UN and its specialized agencies have helped develop a global counterterrorism legal framework consisting of 16 international treaties that criminalize nearly every imaginable terrorist offense and facilitate international legal cooperation in this area. With these instruments, which have laid important normative foundations in a number of counterterrorism-related fields, the UN system has created a broad framework of international criminal law directly applicable to counterterrorism. It limits the freedom of movement of terrorists who are subject either to being prosecuted or extradited by states parties that find them on their territory. They provide essential tools for extradition and mutual legal assistance (MLA) for national authorities to assist requesting state parties by conducting investigations on their behalf and passing the information, evidence, and possibly even the accused over to that country and help ensure that there are no safe havens from prosecution and extradition. In addition to these treaties, the Security Council has adopted resolutions since 9/11 that impose counterterrorism obligations on all states to adopt laws, strengthen borders, deny safe haven, and improve cross-border information sharing and other forms of cooperation.
The above suggests that there is a wide-ranging international counter-terrorism legal framework in place. However, there are two significant gaps that need to be addressed.
The first concerns implementation. Despite the dramatic increase in the past few in the number of countries that have joined the international conventions, not one of them has universal participation and less than half have become parties to the ones that were in force as of 2002. Not surprisingly, regions where the terrorist threat is perhaps the greatest (Middle East, Southeast Asia, and Africa) have the lowest level of participation. All too often countries that have signed on to the conventions are failing to implement them. The same remains true of supposedly legally binding Security Council resolutions. Yet, there remains no global mechanism which can effectively monitor implementation and identify willful non-compliance.
The second concerns the lack of a common definition of terrorism, with negotiations on a UN comprehensive convention on international terrorism still deadlocked after more than 35 years. Although some say the above 16 treaties cover almost any imaginable form of terrorist attack, it is not broad enough. One practical implication of this failing is that not all countries define terrorist offenses under their respective national laws in the same way, which often creates significant roadblocks to effective international legal cooperation in the prosecution or extradition of suspected terrorists. For example, not all national definitions satisfy the principle of legality for them to conform with international human rights law. In addition, the lack of a global definition of terrorism and the resulting discrepancies in domestic law can complicate efforts to satisfy the principle of “dual criminality,” which is a pre-requisite for international cooperation, especially extradition.
Although important legal standards have been seen by the UN, without a more serious effort to ensure implementation of them and agree on a common definition, the much needed international law framework will continue to fall short of its potential.
— Eric Rosand
This week long terrorism salon will continue to be hosted by The Washington Note and UN Dispatch.