This is Part I of a two-part post. Read Part II here.
At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.
Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.
Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.
One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.
International individual obligations flowing from Res. 2178?
The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like?
According to the wording of Article 25 of the UN Charter, the resolutions of the Security Council appear to oblige only the UN Member states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. In its Kosovo advisory opinion, however, the ICJ found that it could “establish, on a case-by-case basis, […] for whom the Security Council intended to create binding legal obligations.” (para. 117). The ICJ did not rule out a binding effect of Security Council resolutions on individuals in principle. It did not even limit the potential binding effect to non-state actors that enjoy international legal personality. In the Kosovo proceedings, the ICJ merely found that resolution 1244 did not give any “indication” that it was directed at the authors of the declaration of independence, but rather only at the UN Member states, the UN itself, and its organs (para. 115). The focus on a mere “indication” suggests that it would be possible to impose obligations on non-state actors where such obligations can be inferred by the circumstances, even if they are not explicit.
What speaks in favour of accepting that – in principle – a Security Council resolution, such as res. 2178, can create binding obligations for individuals? The doctrinal explanation for a binding effect of resolutions on the individuals addressed surely does not consist in any consent of those individuals subject to the resolution. Neither does the explanation lie in any presumed legislative competence of the Member states which have consented to the resolution in regard to all actors on their territory. The explanation is rather that the UN Charter, which enjoys a special legal quality (in the view of some, as a world constitution), endows the Security Council with a special authority that – within the boundaries of the principle of legality – also is effective erga omnes vis-à-vis individuals. It follows that its resolutions are in principle suitable as a legal basis for international obligations. This power of the Council flows from the Charter itself, in the interpretation given to it through subsequent practice as accepted by the UN Member states (see below), and by the ICJ in its Kosovo Opinion.
The most important normative justification for this power is the need to avoid a regulatory gap. If a Security Council resolution aims to have a pacifying effect, it must, especially in the context of fragile or failed statehood (as it is now the case in parts of Syria and surrounding regions), directly address dangerous, armed, criminal individuals or groups. It would not be sufficient and would maybe even be counterproductive if the Security Council were to call upon only the states involved to suppress the terrorist or military activities. The Council’s power to address individuals and groups must, to be effective, go beyond the formulation of purely political wishes (as opposed to binding legal orders), but whether this is indeed the case depends on a concrete resolution’s substance.
A very important limit on such direct obligations incurred by individuals is, however, the principle of legality. That principle states that the resolutions may give rise to real individual legal obligations only if those obligations are foreseeable for the individuals addressed. This is the case only if the obligations and their addressees can be derived from the wording of the resolutions with sufficient contextual determinacy, and when the resolutions are indeed published. For this reason, merely implicitly expressed obligations (as insinuated by theKosovo Court) must be viewed critically because they risk violating the principle of legality.
I submit that probably only the wording of para. 1 of Res. 2178 is sufficiently clear, and also clearly addressed to individuals themselves. The main problem seems to be the lack of definition of “terrorist act”. Arguably, an international common ground on the notion of “terrorism” has already emerged; manifest in various international legal conventions, but no undisputable customary law-based definition exists. The prevailing understanding is, for example, embodied in para. 3 of res. 1566(2004), mentioning
criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.
It is submitted that the reference, in res. 2178, to “terrorism” and “terrorist acts”, is sufficiently clear so as to prohibit terrorist acts (but not clear enough to justify a criminal sanction based on the resolution, see below). The resolution thus is the legal basis for everyone’s obligation not to commit terrorist acts or participate in the armed conflict surrounding ISIL.
Direct effect of Res. 2178?
What happens if a UN member state does not properly implement res. 2178 and does not adopt the legislation or administrative measures required? The Security Council’s demands are very far-reaching. For example the Council “encourages Member states to employ evidence-based traveller risk assessment and screening procedures including collection and analysis of travel data” (para. 2). Beyond this mere “encouragement”, the Council “decides that all states shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute (…) their nationals who travel or attempt to travel to a state (…) for the purpose of the perpetration, planning, or preparation or participation in, terrorist acts” (para. 6 lit. a). The Security Council here requires the Member states to create and enforce criminal offenses which relate to mere preparatory behaviour (possibly) leading to the commission of terrorist acts.
What if a Member state’s population rejects the excessive data-collection demanded, and what if a Member state’s parliament refuses to adopt such broad and “anticipatory” criminal law provisions? Could any administrative authority, prosecutor and domestic court then directly apply the Security Council resolution?
We should at this point distinguish between administrative law-measures such as refusing a passport to travel into Syria (cf. res. 2178 para. 6), new legislative measures, such as laws requiring airlines to collect advance passenger information (para. 9), and adopting and enforcing criminal law, e.g. on the preparation of terrorist acts (para. 6).
I submit that a possible direct effect of a Security Council resolution, whether restraining individuals, as res. 2178 does, or benefiting them, should be assessed according to the same criteria as applied when examining the direct applicability (or direct effect or self-executingness) of the provisions of an international treaty, but that these criteria need some modification. Three reasons for using those criteria can be given: Firstly, from the perspective of the domestic law-applier, the binding effect of Security Council decisions resembles that of a treaty. Secondly, it could be said that the decisions’ binding effect derives from a treaty (the Charter) and that therefore their legal nature is conventional rather than unilateral. Thirdly, direct effect has also become an issue with regard to judicial or quasi-judicial decisions of international courts or monitoring bodies. Security Council decisions, in their binding effect, resemble such decisions, too.
The traditional criteria of suitability for direct application, namely unconditionality and precision of the international act (looking at its content, objective, and wording) normally do not pose a problem for Security Council decisions. In this scenario, the question of legitimacy stands in the foreground: Should the Council decision bind the domestic institutions, as precedence or at least as a normative guideline? It is submitted that the response should be guided by concern for national constitutional principles such as self-determination/democracy, legality, and legal certainty, but that the direct effect of the Council decision should not be ruled out as impossible from the outset. Domestic bodies which seek to reject a direct effect of a Council decision which specifically addresses individuals must justify this on the basis of constitutional principles.
One normative consideration relates to the democratic legitimacy of international law. If one considers domestic authorities, especially courts, as the gate keepers of legitimacy of all law which is applicable in the domestic sphere, and especially as the guardians of democratic self-government, one could argue that it is incumbent on them to safeguard these constitutional principles through rejecting the direct effect of international treaty norms. This reasoning would a fortiori apply to Security Council resolutions, because they are adopted in a non-inclusive procedure, and are binding upon third states which did not consent to them.
Leaving this aside, the most important aspect of any direct effect (besides the questions of the separation of powers, and of democracy) of res. 2178 (or rather parts of it) is the principle of legality. Under the rule of law, especially obligations imposed on individuals must be based on a clear legal basis. The question then is whether a Security Council decision constitutes a sufficient legal basis. That question is most acute when it comes to the establishment of a crime through a rule of international law (see below).
But it is also relevant for other types of obligations imposed on individuals, especially when these obligations involve the curtailment of individual freedoms and human rights. For example, the “foreign terrorist fighters’” obligation to desist from travelling to join ISIS forces requires that he does not exercise his human right to travel in this regard (Art. 12 ICCPR). That human right can only be limited on the basis of law (Art. 12(3) ICCPR: ”The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” I submit that a Security Council resolution can constitute a law in this sense – a “law” does not always need to be a domestic parliamentary act. It can be an international act which has been applied in an inclusive and transparent procedure. It is not its “international” character but rather deficits of inclusiveness and transparency which might damage the authority of a Security Council resolution – but which can and should be overcome. Note that res. 2178 was adopted unanimously and was acclaimed by 50 states taking the floor at the summit, but still the procedure of deliberation and adoption could and should be improved.
Overall, with due respect for the principles mentioned, I do not see any reason which wouldab initio foreclose the possibility of applying Security Council resolutions directly. Notably para. 1 of res. 2178 can be applied by Member states’ authorities and courts as a basis for administrative law-type measures.
Res. 2178 is no basis for criminal sanctions
Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.
So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.
Previous Security Council resolutions directly addressing individuals
Resolutions combatting terrorism and piracy
Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)).
The sanctions resolutions (both comprehensive regimes of economic sanctions and targeted sanctions) aim at influencing the conduct of individuals. However, these resolutions again oblige only States to take measures under their national law, especially to prohibit private individuals within their jurisdiction from engaging in trade, to prohibit them from leaving or transiting through the country, and to freeze their accounts (the classic one being UNSC Res. 1267 (1999) against the Taliban). The typical formulation of the Security Council is that it
calls upon all States to take appropriate measures to ensure that individuals and companies in their jurisdiction (…) act in conformity with United Nations embargoes, (…) and, as appropriate, take the necessary judicial and administrative action to end any illegal activities by those individuals and companies; (…). (random example of para. 21 of UNSC res. 1343 (2001) on Sierra Leone).
Technically speaking, the individuals here are still mediated through their states (or, in the case of the EU, through the EU).
Sometimes it looks as if the Security Council had directly imposed financial and travel sanctions on individuals, for example on individuals who recruit child soldiers, or who attack peacekeepers (see the latest sanction resolution concerning the Democratic Republic of the Congo, res. 2136 (2014), para. 4). However, this resolution refers to its “mother-resolution”, res. 1807, whose para. 1 “decides (…) that all States shall take the necessary measures (…).”
The closest to directly obliging individuals to comply with a sanction have been formulas such as in res. 1474 (2003) whose para. 1 “stresses the obligation of all States and other actors” to comply with a previous resolution imposing an arms embargo in respect of Somalia.
Moreover, the sanctions committees (subsidiary organs of the Security Council as referred to in Art. 29 of the UN Charter) make decisions that are binding on individuals. For instance, the Al-Qaida and Taliban Sanctions Committee designates individuals (Res. 1333 (2000), para. 8(c)). It is mandated to consider requests for the listing and delisting of persons (See, e.g.,Guidelines of the 1267 Committee of 7 November 2002, most recently amended on 15 April 2013, para. 4(c)). The committee makes these decisions itself; for instance, it decides to delist a person on the recommendation of the ombudsperson.
Because the powers of the sanctions committees are considered to be delegated powers of the Security Council, the sanctions committees must act within the scope of recognised principles of delegation. A key precondition for delegation is that the Security Council cannot delegate more powers than it may exercise itself. The Security Council itself must therefore be entitled to impose obligations on individuals if the committees are expected to do so with legal effect.
Recommendations to individuals
Other resolutions expressly direct recommendations to individuals and groups. Several times, the Security Council has called upon private persons, NGOs, and companies to support UN sanctions policy. In regard to Sierra Leone, the Security Council “encouraged” the diamond industry to cooperate with the official government (res. 1306 (2000) of 5 July 2000, para. 10). In a resolution on the crisis after the presidential elections in Côte d’Ivoire (extension of the UNOCI mandate), the Security Council “calls upon the government and all international partners, including private companies, involved in assisting the Government in the reform of the security sector, to comply with the provisions of resolution 1980 (2011)” (res. 2000 (2011) of 27 July 2011, para. 16).
Resolutions on NIACs
The Security Council has so far imposed unambiguous strict legal obligations on individuals only in NIACs (including conflicts potentially “internationalised” through the involvement of third states or international organisations); this includes the current ISIL situation. In this connection, several resolutions have called upon not only the involved states but also other political groups and individuals to immediately cease hostilities, to comply with previously agreed ceasefire agreements, and the like (on Kosovo Res. 1160 (1998), para. 2; res. 1199 (1998) para. 1; res. 1203 (1998) para. 4). Res. 814 (1993) on Somalia addresses “all Somali parties, including movements and factions” (para. 8). Res. 1010 (1995) paras 1 and 2, demanded that the Bosnian Serb party give access to UN and ICRC personnel and respect their rights, and so on.
The practice sketched out here constitutes “subsequent practice” in the sense of Art. 31(3) lit b.) VCLT, and must therefore be taken into account when interpreting Art. 25 UN Charter with a view to determining the normative power of res. 2178.
Domestic authorities which do not want to apply para. 1 of SC res. 2178 directly would have to justify the non-application of that resolution. They should rely, in their justification, on the mentioned principle of legality which ultimately seeks to protect individual liberty.
Under due respect for the principle of legality, notably in its strict version of nulla poena, resolution 2178 surely cannot deploy any criminalising effects. But the obligations to cease and desist from all terrorist acts directly flow from the Security Council resolution 2178. It could even be argued (although with some difficulty) that the individuals’ obligation not to travel into a region to participate in the financing, planning, preparation, or perpetration of terrorist acts also flows from the resolution itself (paras 1, 6 and 8).
That would mean that a domestic authority, in the absence of a domestic boundary control law, could – from the perspective of international law − rely on res. 2178 to refuse the issuance of a passport, for example. It would have to respect international humans rights law, namely the human right to leave one’s country (12(2) ICCPR), for this. It seems as if the limits spelt out in Art. 12(3) ICCPR are prima facie satisfied, because the travel ban and control is, as argued above, “provided by law”, and seems to be “necessary” to protect national security, public order, and the rights and freedoms of others.