The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (107 page)

Implicit in this strategy is a determination that strong states are key in the counter terrorism struggle. Council resolutions emphasize the need for steps to strengthen and control borders, and to exercise adequate monitoring and control of citizens and non-citizens within those borders, along with the financial and material assets of potential terrorists. This has taken the Council into unprecedented territory, involving it in support of, if not active engagement in, state capacity-building.

In doing so the Council has, almost unnoticed, become the centre of a significant information-gathering exercise. A CTC report recognizes this fact in making the argument for greater resources:

That said, those member states who have things to hide – in effect the ones who most need to comply – will likely continue to maintain the cloak of secrecy. While the CTC and CTED represent a new role for the Security Council, it remains the case that the CTC and other anti-terrorism measures do not as yet contain any kind of enforcement mechanisms or threat of enforcement. Nor is the Council able to pass independent judgement on the information being offered by member states. This leaves room for error, which the Council’s speedy and fatally flawed condemnation of ETA in relation to the March 2004 Madrid bombings demonstrates.
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The Council’s contribution towards combating terrorism must be weighed in this context.

The evolution of the Security Council approach to terrorism touches on an underlying tension between it and the General Assembly. The Council’s move to deal with terrorism as a phenomenon rather than just in response to specific events, beginning with Resolution 1269 but then taking full form after 11 September, has not been greeted with overwhelming enthusiasm by the General Assembly. The Assembly sees the Council as encroaching on its territory, both in terms of approach – addressing terrorism as a general phenomenon – and function – in providing overall legal requirements for states. Indeed, the use of
Chapter VII
, and the language that the Council ‘decides that all states shall’ in contrast to the
traditional ‘calls upon states’ has prompted some commentators to identify a new legislative role of the Council.
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The requirements of Resolution 1373 draw on the provisions of the most recent conventions established by the General Assembly but in doing so, the Council moved those provisions from the realm of a convention to which a small number of states had acceded to a binding requirement on all states. The Council is, therefore, encroaching if not overstepping the General Assembly’s traditional role. There is little the General Assembly can do about this beyond calling for care in Security Council action.
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The existing division of labour is a function of the evolution of terrorism in the UN context. Terrorism clearly falls within the realm of the Council’s mandate on international peace and security. In the absence of Council action during the Cold War the General Assembly filled the gap. The scope and extent of Council activity on this issue has now shifted the balance. The Council is clearly actively seized of the issue and the lead player in the UN context.

The level of Council activity is significant, and has expanded across the issue area. All of this has occurred with a remarkable degree of consensus within the Council even while the drama of the divisive debate about Iraq and its aftermath has been carried out. The sustained unanimity that the Council has demonstrated on this issue speaks to the shared sense of threat that extends to all members of the Council, not just the Permanent Five.

A shared sense of threat, however widely felt, has not translated into the General Assembly’s work in a way sufficiently pervasive or significant to overcome the longest-standing obstacle to progress there: the question of a definition. The way in which the General Assembly and Security Council have dealt with the question of how to define terrorism is a further indication of the different approaches and political contexts of the two bodies. In contrast to the General Assembly, the Security Council has spent little time worrying about how to define terrorism. The Council proceeded, as did the G7 in its early statements on the issue, on the assumption that the concept was self-evident, and from the beginning its resolutions made clear that motivation was not a justification for such acts.
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As the Council proceeded with its work it did, in fact, establish at least the parameters of a definition, if not a definition itself, thereby moving itself further into General Assembly territory. In Security Council Resolution 1566, for example, the Council ‘recalls’

The High-level Panel, established by the Secretary-General in 2003 to consider the future of the organization, picked up on the Security Council’s approach and used it in its own outline of the basic elements of a definition.
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The Secretary-General endorsed this approach in his report,
In Larger Freedom.
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In spite of this foundation, leaders gathered at the world summit meeting in September 2005 were able to agree to condemn terrorism – echoing the language of 1566 in stating simply that they condemned terrorism ‘in all its forms and manifestations’ – but could still not reach agreement on a definition.
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A potential shift in the balance between Security Council and General Assembly activity may occur as a result of the General Assembly’s adoption of a global counter terrorism strategy in September 2006.
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While the strategy has the benefit of providing an overarching framework for action it is unlikely to bring about a fundamental shift in the division of labour between the Assembly and the Council if for no other reason than the power the Charter gives the Council to pursue issues of international peace and security according to criteria and in ways of their own choosing.

The shifting of the balance of action into the realm of the Security Council has implications for two other areas of concern relating to terrorism: the use of force and human rights. As this discussion demonstrates, even though the Council has moved in some significant ways to deal with terrorism, it has done so primarily at the level of process. The recognition of the right to self-defence after 11 September represented the equivalent of a handover to the United States to engage in its ‘war on terrorism’ without any form of Council oversight. There are a number of complex questions involved here. What sorts of responses qualify as self-defence, and at what point does the use of force become something other than self-defence over time? In using force to respond to terrorist attacks what targets are acceptable or provide utility in the struggle to combat terrorism? As the London and Madrid bombings
demonstrate, the use of force is not always a viable option. Like the debate around the use of force in pursuit of humanitarian goals, a debate about the meaning and implications of self-defence, especially as it relates to efforts to deal with terrorism, needs to occur.

In contrast, Council actions demonstrate a consistent concern about the implications of counter terrorism efforts for human rights. This is an issue that receives attention in a number of other UN agencies and actors yet the Council has at least demonstrated an awareness of its importance by including statements about the need to maintain observance of international human rights standards in all member state and international action.
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Although human rights are not traditionally a key factor in Security Council activities, terrorism has brought the issue to the forefront in a new way. This is especially the case in relation to Council activity under the 1267 sanctions regime, as it involves taking action against individuals. The 1267 Committee has developed procedures for ensuring that the rights of individuals who are on the list or considered for listing are protected, but this has taken time and is a process that is subject to the provision of accurate, detailed, and highly sensitive information from member states. This is where the Council must find the delicate balance between the need to address a serious threat to international peace and security and the maintenance of key provisions of the Charter.

For all the preceding discussion of the Council’s role as a unit, this process is US-driven, and was so even before the attacks of 11 September. While the US is a key actor at the Council, it is not the only one. It is not difficult to find an explanation for the strength of support for Council activity on this issue. Other leading member states have themselves been targets of terrorist activity, including the United Kingdom, Spain, Jordan, Egypt, Kenya, to name just a few. But the pervasiveness of the perception of threat is also an indication of the difficulty of the task at hand. However important and innovative Security Council activity may be, no one is arguing that the Council is or will be the primary actor on this issue on the world stage. As with other issues of international peace and security, Security Council action on terrorism ultimately works as a facilitator and supporter of state action, not as a substitute or alternative to it. As such, its ability to have an impact on terrorism is inextricably tied to the ability of member states to develop an effective, functional counter terrorism strategy based on an accurate, in-depth understanding of its causes and nature.

SARAH V. PERCY

T
HE
United Nations has taken an active role in commenting upon and seeking to regulate private force since mercenaries first made modern headlines in the Congo in the 1960s. The more recent appearance of private companies which provide military services to foreign states or other entities has again brought the mercenary question into the spotlight. Private military companies (PMCs), such as Executive Outcomes and Sandline, and private security companies (PSCs) such as ArmorGroup, Aegis, and Triple Canopy in Iraq, have grabbed international headlines since the 1990s. Much of the attention that PSCs, PMCs, and mercenaries receive is negative. Moreover, the former UN Special Rapporteur on the mercenaries question, Enrique Bernales Ballesteros, argues that the threat posed by private force remains the same whether it is provided by private firms or by mercenaries.
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He argues that ‘as a general rule, the contracts they [private firms] sign constitute acts of intervention in the internal affairs of a State, although consented to by the Government, where an essential military function is carried out in exchange for a
handsome recompense. There is a clear association between such conduct and mercenary acts.’
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Ballesteros has been a particularly fierce critic of mercenaries. In a typical statement, Ballesteros wrote:

If what Ballesteros says about mercenaries (and according to his rubric, PMCs and PSCs) were true, then this chapter would be straightforward: it would examine how the Security Council (SC) actively responds to the clear threat to international peace and security posed by mercenaries. Indeed, the General Assembly (GA) and its related bodies have taken an active, if not actively hostile, approach to the control of mercenaries that treats all types of private force as very serious threats to states. However, the Security Council has paid only minimal attention to individual mercenaries, and no attention to private security companies, and has only once directly referred to a private military company: in the case of Côte d’Ivoire in 2003. The question for analysis is thus not ‘what is the relationship between the UN Security Council and mercenaries’, but rather ‘why is there no relationship between the Security Council and mercenaries?’ and ‘what does it mean (or matter) if the GA and the Security Council have taken different approaches?’

I argue that in fact mercenaries in the 1960s, 1970s, and 1980s posed very little threat to international peace and security and so were justifiably ignored by the Security Council, and that the implications of devolving military functions to the private sector have not yet posed such a threat, even if they might in the future. The GA response reflects a strong negative perception of mercenaries which did not correspond to the reality of mercenary actions between the 1960s and 1980s, but became so strongly institutionalized that PMCs and PSCs were treated inappropriately as mercenaries when they appeared on the international stage in the 1990s. The GA has unquestionably taken the leading role in relation to private force, but its approach may no longer suit the challenges posed by the modern spectrum of private actors selling military services on the international stage, and has closed off potential options for the Security Council.