Cornell International Law Journal

Volume 35
Article 3
Issue 3 Winter 2002

Before and after: The Changed UN Response to

Terrorism Since September 11th
Nicholas Rostow

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 Before and After: The Changed UN
Response to Terrorism since
September 11th
Nicholas Rostowt

Introduction
The United Nations (UN) has always had an ambivalent relationship with
the entire idea of terrorism. Some of its constituent parts (governments
and international civil servants) and influential elements in the UN firma-
ment (would-be governments, non-governmental organizations, and indi-
viduals) have viewed terrorism as a social phenomenon. 1 In contrast,
experts outside the UN view terrorism quite differently. Although they
have had difficulty drafting a precise definition, 2 experts have long agreed
that terrorism is a means-a weapon. 3 Terrorism is not a political move-

t Yale B.A. (1972), Ph.D. (1979), J.D. (1982). Member of the New York and
District of Columbia bars. My Federal government service has included Legal Adviser to
the National Security Council, 1987-93; Staff Director of the Senate Select Committee
on Intelligence, 1999-2000; Charles H. Stockton Professor of International Law, U.S.
Naval War College, 2001; General Counsel, U.S. Mission to the United Nations, 2001-.
The views expressed in this paper are my own and do not necessarily represent those of
the Department of State or the United States Government. I should like to acknowledge
the invaluable assistance of Bridget O'Connor, candidate for J.D., Duke Law School,
2003, in preparing this text for publication.
1. For UN perspectives on terrorism in the mid-1980s, see Abraham D. Sofaer, Ter-
rorism and the Law, 64 FOREIGN AFF. 901, 903-06 (1986). For a more recent reflection
on the UN understanding of terrorism, consider a comment in February 2001 by a
Malaysian representative to the ad hoc committee of the General Assembly created to
draft a comprehensive convention on terrorism. Speaking on behalf of the Organization
of the Islamic Conference, the representative said that a definition of terrorism was
desirable so that terrorism could be "differentiated from the legitimate struggles of peo-
ple under foreign occupation for national liberation, as recognized by the relevant reso-
lutions and declarations of the United Nations." Committee on Terrorism Takes Up Draft
Comprehensive Anti-Terrorism Convention, Press Release, Ad Hoc Committee on Assem-
bly Resolution 51/210, 5th Sess. 19th mtg., U.N. Doc. L/2971 (2001).
2. Terrorism, which dates at least from the French Revolution, has bedeviled those
who would draft a definition. See Walter Laqueur, We Can't Define "Terrorism" but We
Can Fight It, WALL ST. J., July 12, 2002, at A12.
3. Nearly forty years ago, Raymond Aron wrote: "The word terror has been
employed, in our era, in at least four contexts: by the Germans to designate the bombing
of cities, by those seeking to conserve an established power (German occupation offi-
cials in France or French authorities in Algeria) to stigmatize the action of the resistants
or nationalists, by all authors to characterize one of the aspects of totalitarian regimes,
and lastly by usage to designate the relation of dual impotence between the two great
powers [the United States and the Soviet Union] armed with thermonuclear bombs."
RAYMOND ARON, PEACE & WAR: A THEORY OF INTERNATIONAL RELATIONS 169 (1967). More
recently, Eric Hobsbawm noted that "the democratization or privatization of the means
35 CORNELL INT'L LJ. 475 (2002)
 Cornell International Law Journal Vol. 35

ment in and of itself, but a tool used by various movements. Groups from
Ireland to the Philippines, from the Korean Peninsula and Japan to Africa
and the Middle East, from Russia to India, from the United States to South-
east Asia, have turned to terrorism to advance their causes because too
often it has proved effective. Since September 11, 2001, everyone has been
able to see that the use of terrorism crosses national and ethnic bounda-
ries. Even among those who admit that terrorism is a weapon, many have
4
trouble accepting that terrorism should be banned in all circumstances.
This phenomenon has bred misunderstanding about what the UN has said
and what it is doing about the problem; indeed, about whether it sees ter-
rorism as a problem at all and, if so, what kind of problem.
The following pages sketch the UN approach to terrorism and the
impact of the attacks of September 11, 2001 on that approach. In this
context, I shall offer some tentative views about the future political and
lawmaking activity of the UN in regards to terrorism.

I. The United Nations, Anthropologically

It may be useful first to reflect on what the UN is and is not. It is, above all,
a human place. It exhibits the full range of behavior and emotion. Moreo-
5
ver, its institutions also conform to Parkinson's Laws on Administration.
The UN consists of a large number of groups involved in complex rela-
tionships. First, there are the delegations of Member States. The presence
of 191 state representatives in one place creates a multiplicity of dynamics
that do not always seep through the UN walls but which do always affect
the handling of international crises and the negotiation of international
agreements. Some representatives act independently of their capitals and
write their own instructions. Other representatives have close relations
with their capitals and are bombarded with instructions. Some votes are
for sale, and some delegations cede to substitutes. A story making the
rounds tells of a non-governmental organization offering to represent an
impoverished State at a big conference, thus nominally giving that State a
voice without its having to pay the cost of attendance.
Non-governmental organizations (NGOs) are a wild card in UN diplo-
matic games. NGOs are numerous and multiplying. Since NGOs were first
granted consultative status with the Economic and Social Council
(ECOSOC) in 1948, the number of NGOs eligible for that status has

of destruction" raised the specter "of violence and wreckage" anywhere. ERIC HOB-
SBAWM, THE AGE OF EXTREMES: A HISTORY OF THE WORLD, 1914-1991 560 (1994).
4. See, e.g., Committee on Terrorism, supra note 1 (quoting Pakistani representative
who stated that it was necessary to take into consideration the Islamic Conference pro-
posal to develop a definition so that terrorist acts could be distinguished from legitimate
struggles for liberation; and quoting the Syrian representative who stated that "terrorism
must be distinguished from the legitimate national struggles against foreign occupa-
tion"). For a fuller discussion of the UN labyrinth, see generally NEW ZEALAND MINISTRY
OF FOREIGN AFFAIRS & TRADE, UNITED NATIONS HANDBOOK (1998).
5. See C. NORTHCOTE PARKINSON, PARKINSON'S LAW AND OTHER STUDIES IN ADMINIS-
TRATiON 2-13 (1957).
2002 The Changed UN Response to Terrorism

increased from 41 to over 1,350.6 In 1999, the Yearbook of International

Organisations numbered international NGOs at more than 26,000. 7 Both
NGOs and certain State delegations are pushing for increased NGO inclu-
sion in the UN processes. NGO influence on some negotiations has been
substantial. For example, according to a U.S. participant, NGOs domi-
nated the 1998 negotiations on a ban on landmines. 8 NGOs proved
equally significant in the negotiations that created the 1998 Rome Statute
of the International Criminal Court. 9 They exert the most influence, how-
ever, through participating in the democratic political processes of the UN
Member States.
Next in importance are relations among UN organs. The dynamic
between the Security Council and the General Assembly attracts the most
attention. Tension between the two bodies is inevitable. The General
Assembly is jealous of its budgetary prerogatives, while the Security Coun-
cil guards its "primary" responsibility for maintaining international peace
and security. 10 In the decade since the 1991 Gulf War, the interests of the
Security Council and the General Assembly have overlapped. This phe-
nomenon has encouraged forum shopping. The General Assembly has
developed a number of means to consider and make recommendations on
issues that the Security Council is also considering notwithstanding Arti-
cle 12 of the UN Charter" and a potential veto by a Permanent Security

6. Arrangements and Practicesfor the Interaction of Non-governmental Organizations

in All Activities of the United Nations System: Report of the Secretary-General,U.N. GAOR,
53d Sess., Agenda Item 58, 2, U.N. Doc. A/53/170 (1998).
7. Citizens' Groups: The Non-Governmental Order: Will NGOs Democratise, or
Merely Disrupt, Global Governance?, ECONOMIST, Dec. 11, 1999, available at 1.999 WL
29811934. The yearbook listed only 6,000 such NGOs in 1990.
8. See generallyGina Li, An Analysis: The Impact of Non-Governmental Organizations
On the Practice of Public Relations, PUB. REL. Q., Winter 2001, at 11-14.
9. See Ruth Wedgewood, The Irresolution of Rome, 64 L. & CONTEMP. PROBS. 193,
202-08 (2001).
10. UN CHARTER art. 24, para. 1.
11. Article 12 bars the General Assembly from making recommendations with
respect to a situation with which the Security Council is seized absent a Security Coun-
cil request. U.N. CHARTER art. 12, para. 1. When the Soviet Union blocked the Security
Council from considering intervention in the Korean War, the United States obtained
General Assembly adoption of the "Uniting for Peace" Resolution, which provided that
the General Assembly may consider the matter with a view to making recommendations
when the Security Council is prevented from exercising its primary responsibility of
maintaining or restoring international peace and security. See ROSALYN HIGGINS, UNITED
NATIONS PEACEKEEPING 1946-1967: DOCUMENTS AND COMMENTARY: THE MIDDLE EAST
§§ 2.4, 2.11 (1969); ROSALYN HIGGINS, UNITED NATIONS PEACEKEEPING 1946-1967: Docu-
MENTS AND COMMENTARY: ASIA § 3.4 (1970). In the Korean War, the General Assembly
recommended actions in defense of South Korea. See id. The Soviets and the French, for
example, argued that the Uniting for Peace approach was inconsistent with the UN Char-
ter. See id. More recently, the Palestinians and their UN allies have argued that the
General Assembly ought to invoke the Uniting for Peace resolution in dealing with the
Arab-Israeli problem because the United States has used its Security Council veto to
defeat certain resolutions dealing with Arab-Israeli issues. See James Bennet, U.N.
Report Rejects Claims of a Massacre of Refugees, N.Y. TIMES, Aug. 2, 2002, at A10; James
Bennet, Israeli Forces Pull BackfromJenin, But Blockade Still Remains, N.Y. TIMES, Apr. 19,
2002, at A10; Joel Greenberg, Freed Palestinians Tell of Roundup in Grim Detail, N.Y.
TIMES, Apr. 10, 2002, at A1O.
 Cornell International Law Journal Vol. 35

Council Member. Refusals to terminate Special Sessions and the boot-

strapping of humanitarian issues stand out among tactical approaches.
Supporters of the Palestinian Authority have kept the Tenth Emergency
Special Session of the General Assembly going with repeated adjournments
for years after 1997. Some delegations grumble that the Palestinians are
debasing the currency of General Assembly sessions by repeatedly prevent-
ing meetings from having any constructive impact on the Arab-Israeli situa-
tion. The ECOSOC, the International Court of Justice, and the Human
Rights Commission are unique UN entities with their own agendae and
habits.
Last, but not in any way least important, are the UN bureaucracies. 12
One of Parkinson's Laws says that when a bureaucracy reaches a certain
size, it ceases to require contact with the outside world in order to func-
tion.' 3 In effect, the bureaucracy becomes accountable only to itself.
The UN organization chart lays out an unwieldy structure of seven
principal organs, from which stem as many as 90 offices, agencies, com-
mittees, programs, funds, and other entities.' 4 Throngs of full-time
employees staff each of these sub-organs-translators, statisticians, econo-
mists, secretaries, television producers, computer experts, lawyers, physi-
cians, carpenters, and others.' 5 The UN Secretariat employs 8,700
permanent staff members under its regular budget, in addition to nearly
5,740 under specially funded programs or projects. 1 6 Then, like a flying
buttress, a contract bureaucracy supports the structure. Sometimes organi-
zations like the Security Council create institutions to assist its work. The
Iraq inspection bureaucracy serves as one example.
Sometimes the Secretary-General employs additional staff for particu-
lar purposes. For example, in response to criticisms of the UN for its fail-
ure to prevent the genocide in Rwanda and the massacre of Muslim
civilians at Srebrenica in Bosnia, Secretary-General Kofi Annan appointed
Lakhtar Brahimi, the former Foreign Minister of Algeria, to examine UN
peacekeeping operations. 17 Brahimi's report' 8 represented an authorita-
tive call for adequate mandates and resources for missions; however, its
practical impact on such difficult missions as the UN operation in the
Democratic Republic of the Congo (DRC) has been limited. Where mis-
sions are risky, as in the DRC, the UN has trouble finding states willing to

12. See generally NEW ZEALAND MINISTRY OF FOREIGN AFFAIRS & TRADE, supra note 4.
13. See PARKINSON, supra note 5, at 2-13.
14. See Organization Chart of the United Nations, available at http://www.un.org/
aboutun/chart.html (last visited Oct. 28, 2002).
15. See United Nations General Information, available at http://www.un.org/
geninfo/ir/ch2/ch2_txt.htm (last visited Oct. 28, 2002).
16. Id.
17. UN Peacekeeping Under Review, BBC News, Aug. 23, 2000, available at http://
news.bbc.co.uk/hi/english/world/americas/newsid_892000/892075.stm (last visited
Oct. 27, 2002).
18. Report of the Panel on United Nations Peace Operations, U.N. GAOR, 55th Sess.,
U.N. Doc. A/55/305-S/2000/809. See also BBC News, supra note 17.
2002 The Changed UN Response to Terrorism

contribute forces. 19 After the United States and its coalition 20 partners
overthrew the Taliban in Afghanistan, Annan again turned to Brahimi to
work on developing a new political future in Kabul. He did so with such
success-developing a new government under President Karzai, fashioning
a LoyaJirga (council) that could represent the country as it turned a histor-
ical page, and helping to mold a new political consensus in Afghanistan-
that he made it look easy.
Brahimi is one of the Secretary-General's cadre of Special Representa-
tives, employed in trouble-spots worldwide. Some Special Representatives
have governmental responsibilities. Others engage in difficult and exhaust-
ing diplomacy, trying to prod warring parties toward peace.
In all, the UN system employs more than 64,700 people worldwide,
21
whose interests and views affect, and sometimes shape, policy decisions.
This congeries of actors affects the way the UN historically has approached
the issue of terrorism, and how it continues to exercise its authority today.
It also makes speaking of the "United Nations" difficult; instead, it is
important first to consider which "United Nations" one means. The tapes-
try of interactions among the groups, delegations, bureaucrats, experts,
and NGOs creates expectations for the future and establishes "right"
behavior that can have the practical force of law.
These group dynamics affect how the UN acts on terrorism and,
indeed, almost all other subjects. They frame debates and influence their
outcomes. For example, the work habits of the Secretariat, contracts with
translators, and other exogenous factors affect the Security Council's pace
of work on terrorism.

II. Before and After September 11, 2001

There is no doubt that the attacks against the United States on September
11, 2001, have changed the context of UN activities. Before September 11,
the UN treated the general subject of terrorism as a General Assembly
issue. Specifically, the matter mainly fell within the jurisdiction of the
Sixth (Legal) Committee of the General Assembly. Through the Sixth
Committee and other UN bodies, the UN has played a part in elaborating
conventions addressing specific crimes committed by terrorists, although
most of the Conventions omit the word "terrorism." The conventions
address the handling of nuclear material, 2 2 plastic explosives, 23 aviation, 24

19. See Special Committee on Peacekeeping Operations Ends Two Day Debate On Need
For Rapid Deployment of Peace Operations, Press Release, Special Comm. on Peacekeep-
ing Operations, 168th and 169th mtgs., U.N. Doc. GA/PK/175 (2002), available at
http://www.un.org/News/Press/docs/2002/GAPK175.doc.htm (last visited Jan. 15,
2003).
20. Report of the Panel on United Nations Peace Operations, supra note 18. See also
BBC News, supra note 17.
21. See United Nations General Information, supra note 15.
22. See Convention on the Physical Protection of Nuclear Material, 1979, 1456
U.N.T.S. 24631.
 Cornell International Law Journal Vol. 35

maritime navigation, 2 5 protected persons, 2 6 and hostage-taking. 2 7 The

goal was to create a basis for universal jurisdiction over, and condemnation
and criminalization of, the types of crimes that terrorists commit, but not
terrorism per se. 28 Although non-lawyers decided what the conventions
would or would not cover, lawyers negotiated the texts.
At the same time as negotiators made progress on acceptable texts in
these areas, the Sixth Committee was unable to agree on a definition of
terrorism. Since the May 1972 terrorist killings of 28 airline passengers in
Israel and of 11 Israeli athletes at the Munich Olympic Games in Septem-
ber 1972, the General Assembly has debated how to define terrorism and
has been unable to reach a consensus. 2 9 Some do not want to label people
terrorists when they use tactics, which, in other contexts would make them
terrorists. Advocates of this perspective would exempt from the definition
of terrorism all activities done in resistance to "foreign occupation" and
activities by those "engaged in the struggle for national liberation." Despite
the efforts of then Secretary-General Waldheim in the wake of the killings
at the Munich Olympics and subsequent attempts by others after Septem-
ber 11, 2001, it has proved so far impossible to achieve a comprehensive
definition of terrorism. The effort to define terrorism has foundered
because some want to be able to use terrorism to advance their political or
social agendae. To this end, in the UN arena, those that would use terror-
ism insist on consideration of the causes of terrorism and other distracting
and difficult matters that derogate from treating terrorism as a means to an
end. 30 As a result, there is no UN-originated convention on the subject
(yet).
After the Sixth Committee failed, the General Assembly decided to
change the forum (however slightly, given the participation). In 1996, the

23. See Convention on the Marking of Plastic Explosives for the Purpose of Detec-
tion, Mar. 1, 1991, U.N. Doc. S/22393, available at http://untreaty.un.org/English/Ter-
rorism/Convl0.pdf (last visited Mar. 21, 2003).
24. See, e.g., Convention on Offences and Certain Other Acts Committed on Board
Aircraft, Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704 U.N.T.S. 219; Conven-
tion for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1.970, 22 U.S.T. 1641,
1973 U.N.T.S. 106; Convention for the Suppression of Unlawful Acts against the Safety
of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, I.I.A.S. No. 7570, 974 U.N.T.S. 178;
Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving Interna-
tional Civil Aviation, Feb. 24, 1988, reprinted in 27 1.L.M. 627 (1988).
25. See Convention for the Suppression of Unlawful Acts against the Safety of Mari-
time Navigation, Mar. 10, 1988, S. TREATY Doc. No. 101-1 (1988), reprinted in 27 I.L.M.
672 (1988); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304, reprinted
in 27 I.L.M 685 (1988).
26. See Convention on the Prevention and Punishment of Crimes against Interna-
tionally Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975,
1035 U.N.T.S. 167.
27. See International Convention Against the Taking of Hostages, Dec. 17, 1979,
1316 U.N.T.S. 206.
28. See generally John F. Murphy, Civil Liability for the Commission of International
Crimes as an Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1, 24 (1999).
29. See, e.g., Sofaer, supra note 1, at 903.
30. Id. at 904.
2002 The Changed UN Response to Terrorism

General Assembly established an ad hoc committee to elaborate an interna-

tional convention for the suppression of terrorist bombings. 3 1 The General
Assembly subsequently charged that committee with elaborating new inter-
national conventions for the suppression of acts of nuclear terrorism and a
32
comprehensive legal framework for dealing with international terrorism.
The General Assembly has renewed the committee's mandate every year
33
since then, and the committee has issued annual reports since 1997.
Delegates have been able to agree on the criminality of certain activities
34
without ever having agreed on a definition of terrorism.
After September 11, 2001, the Security Council weighed in on terror-
ism-"took charge" probably is not too strong a term-and became the
locus of action. That the larger world could not agree on a definition of
terrorism or condemnation of terrorism in all circumstances became irrele-
vant; or, if not irrelevant, a symptom of political disagreement all could
understand. As a first step, the Security Council adopted Resolution
1368. 3 5 The Resolution unequivocally condemned the terrorist attacks of
September 11, called on all states to "work together urgently to bring to
justice the perpetrators, organizers and sponsors" of the attacks, and called
on the international community to "redouble their efforts to prevent and
suppress terrorist acts including by increased cooperation and full imple-
mentation of the relevant international anti-terrorist conventions and
Security Council resolutions." 36 The Resolution also reaffirmed the inher-
ent right of self-defense in accordance with Article 51 of the UN Charter.
Given the circumstances, this affirmation was significant: it implied that
the attacks triggered the right even if, at the time of adoption, the UN
Security Council knew almost nothing about who or what had launched
them.

31. G.A. Res. 51/210, U.N. GAOR, 51st Sess., U.N. Doc. A/RES/51/210 (1996).
32. See Ad Hoc Committee Established by General Assembly Resolution, available at
http://www.un.org/law/terrorism/ (last visited Jan. 16, 2003).
33. See id.
34. See Report of the Ad Hoc Committee Established by General Assembly Resolu-
tion 51/210 of 17 December, 1996, 6th Sess., U.N. Doc. A/57/37 (2002); Report of the
Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 Decem-
ber, 1996, 5th Sess., U.N. Doc. A/56/37 (2001); Report of the Ad Hoc Committee Estab-
lished by General Assembly Resolution 51/210 of 17 December, 1996, 4th Sess., U.N.
Doc. A/55/37 (2000); Report of the Ad Hoc Committee Established by General Assem-
bly Resolution 51/210 of 17 December, 1996, 3d Sess., U.N. Doc. A/54/37 (1999);
Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210
of 17 December, 1996, 2d Sess., U.N. Doc. A/53/37 (1998); Report of the Ad Hoc Com-
mittee Established by General Assembly Resolution 51/210 of 17 December, 1996, 1st
Sess., U.N. Doc. A/52/37 (1997). See also Terrorism by Any Definition,WASH. TIMES, July
9, 2002; Mani Shankar Aiyar, No Global War on Terror, UNITED PRESS INT'L, July 6, 2002.
Perhaps if the international community were able to agree on a definition of terrorism,
this fact would mean terrorism had ceased to be a threat.
35. S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368
(2001).
36. Id.
 Cornell International Law Journal Vol. 35

A. Capacity-Building: The CTC

Resolution 1373 followed shortly after Security Council Resolution

1368. 3 7 In the resolution, the Council decided to impose a number of
binding obligations on States. 3 8 They require that States prohibit both
active and passive support for terrorists. As a result, not only are States to
punish financial transactions on behalf of terrorists and freeze the asset of
terrorists and their supporters, but also States must tighten their border
controls, increase their vigilance against passport and identification for-
gery, deny safe haven to terrorists, and work toward enhancing interna-
tional cooperation against terrorism. 39 As compared to previous
resolutions, Resolution 1373 is far-reaching. It imposes on all States legal
obligations of the kind usually contained only in treaties developed
through the normal treaty-making process. The Security Council was able
to adopt such a resolution under the immediate pressure of the September
11 attacks. 40 Effective implementation of this Resolution will increase
capabilities to fight terrorism all over the world.
To help assure implementation, the Security Council applied a prac-
tice normally reserved for keeping the Security Council's hands on the
details of sanctions and established a committee of the whole Security
Council to monitor implementation. 41 The new committee, known as the
Counter-Terrorism Committee (CTC), operates by consensus, meaning that
all Committee Member States have a veto. 4 2 The Resolution calls on all
States to report to the CTC on their implementation of the Resolution no
later than 90 days from the date of adoption, and thereafter according to a
CTC-mandated timetable. 43 The mandate in this Resolution carries no
expiration date or completion point.
The CTC Chair has often remarked that the UN Member State
response shows the degree of shared understanding of the importance of
the issue, and acceptance of, and support for, the Resolution and the CTC.
The Chair's actions have contributed to this acceptance and support. The

37. S.C. Res. 1373, U.N. SCOR, 57th Sess., 4385th mtg., U.N. Doc. S/Res/1373
(2001).
38. U.N. CHARTER art. 25.
39. S.C. Res. 1373, supra note 37.
40. See, e.g., Secretary-General,Addressing Assembly on Terrorism, Calls for 'Immedi-
ate, Far-Reaching Changes' in UN Response to Terror, Press Release, United Nations Gen-
eral Assembly SG/SM/7977 GA/9920 (Oct. 1, 2001). It is not clear that a few weeks
later the influence of September 11 had not so diminished as to render it impossible to
achieve another similar resolution had it been sought.
41. S.C. Res. 1373, supra note 37, 6. See also Jeremy Greenstock, Chair of the
Counter-Terrorism Committee, Presentation at the "Combating International Terrorism:
The Contribution of the United Nations" Symposium in Vienna, Austria Uune 3-4,
2002) available at http://www/un.org/Docs/sc/committees/1373/ViennaNotes.htm
(last visited Mar. 20, 2003).
42. See generally www.un.org/Docs/sc/committees/1373 (last visited Mar. 20,
2003).
43. S.C. Res. 1373, supra note 37, 9 6.
2002 The Changed UN Response to Terrorism

44
Chair regularly briefs the entire UN membership on the CTC's activities.
He believes in maximum transparency as a good in itself and, in the case of
the CTC, necessary to maintain its legitimacy within the UN community.
He uses these occasions to stress the CTC's fidelity to Resolution 1373,
often noting that document is the CTC's "Bible."
The Resolution calls on States to report the steps they are taking to
implement the Resolution. These reports generally cover counter-terrorism
measures in seven areas: legislation, financial asset controls, customs,
45
immigration, extradition, law enforcement, and illegal arms trafficking.
Almost all Members of the UN reported to the CTC in the first year. To
expedite analysis of these reports, the CTC divided itself into three sub-
committees. Each of the sub-committees works toward processing five
reports a week. Experts in relevant subjects aid the sub-committees by,
among other things, drafting the CTC response to the initial reports. The
experts have proved invaluable and integral to the CTC process, assisting
with the continuing need to fully probe countries' responses. 4 6 For exam-
ple, when a country asserts, "money laundering is illegal so no money
laundering takes place," the experts reply, "we need to know how this law
is implemented," or "how do you monitor to ensure that no money launder-
ing takes place?" The experts' external, non-political role helps the CTC
obtain real answers.
The sub-committees draft (and the full Committee approves) letters
back to the reporting States, saying, "Thank you for the information you
provided; we still need additional information on the following issues ... "
Thus, the response letters vary greatly by State, depending on the specific-
ity of the first report. For example, one country submitted a single-spaced,
58-page report, with relevant appendices. The CTC response was able to
discuss intricate details of the country's banking system. In contrast, some
reports have been sketchy. 47 In such cases, the CTC has responded with a
tutorial on how to understand the obligations of Resolution 1373 and how
to meet the needs of the CTC. This practice has prompted some criticism
about whether the CTC treats some states unfairly by holding them to a
different standard based on their level of development. However, dispari-
ties are an inevitable and a necessary aspect of the CTC's work. There is no
point of completion when the committee will issue a certificate of compli-

44. See Briefings by the Chairman of the Counter-Terrorism Committee, at

www.un.org/Docs/sc/committees/1373/briefings.htm (listing the Committee's briefing
schedule for 2002, which, on average, consisted of two briefings a month).
45. See S.C. Res. 1373, supra note 37, 6.
46. For a description of the CTC operating procedures, see CTC Programme of
Work, U.N. Doc. S/2001/986 (Oct. 19, 2002), at http://www.un.org/Docs/sc/commit-
tees/1373/ (last visited Mar. 20, 2003).
47. In order to get a sense of the varying quality among the reports, compare Report
FromJapan Pursuant to Paragraph 6 of Resolution 1373 (2001), U.N. Doc. S/2001/1306
(Dec. 27, 2001), available at http://www.un.org/Docs/sc/committees/1373/1306e.pdf,
with Report From Afghanistan Pursuant to Paragraph 6 of Resolution 1373 (2001), U.N.
Doc. S/2002/668 (June 13, 2002), availableat http://www.un.org/Docs/sc/committees/
1373/668e.pdf (last visited Mar. 20, 2003).
 Cornell International Law Journal Vol. 35

ance that a State has become "Terrorism-Proof."4 8 The CTC's task has
been to ensure, to the extent possible given its resources, that each State is
making its best efforts to eliminate opportunities for terrorists to establish
themselves in its territory. 49 The CTC's work with Member States through
the review process has helped individual States learn how best to
strengthen their counter-terrorism capabilities and has gone far in creating
a more universal, "best practices" in the global fight against terrorism.
The open-ended dialogue between the CTC and the Member States has
evolved and matured. The Committee has developed standardized ques-
tions. These are not published. But the responses are public, available on
the internet. As a result, the CTC has created the basis for anyone indepen-
dently to develop a matrix evaluating every State's assessment of its imple-
mentation of Resolution 1373. Such action ought to help the international
community increase incentives for fulfilling 1373 obligations, thus
strengthening the world's capacity to combat terrorists and terrorism.
Resolution 1373 does not include a definition of terrorism. As a
result, every country is left to define terrorism for itself, and the Resolution
can instead focus on raising the capacity and the capability to fight terror-
ism-leaving other UN bodies and multi-lateral groups to argue about what
is and what is not terrorism.50 The CTC fulfills its mandate by trying to
make countries honestly assess their own counter-terrorism policies and
capacities. In the case of States that are unwilling to characterize as terror-
ist activities in pursuit of certain goals, the CTC is able to highlight the
inconsistencies such an approach can engender. For example, the CTC can
call attention to tensions arising from a State's different international obli-
gations, particularly conflicts between obligations under UN conventions
5
and provisions in regional conventions that address the same subject. '
The Office of the UN High Commissioner for Human Rights has
expressed concern that the war on terrorism not be exploited for political
advantage by allowing governments wrongly to incarcerate political oppo-
nents.5 2 The Office has asked the CTC to monitor respect for human
rights in connection with States' implementation of Resolution 1373. As
the CTC Chair told the Security Council in public session in January and
July 2002, the CTC is mindful of human rights in its work and values com-
munication with the Office of the High Commissioner. 53 But, the Chair-
man said, the CTC cannot and must not stray from its mandate in

48. See Greenstock, supra note 41.

49. See id.
50. See id.
51. See U.N. CHARTER art. 103 ("In the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter
shall prevail."). Compare S.C. Res. 1373, supra note 37, with League of Arab States,
Arab Convention for the Suppression of Terrorism, Apr. 1998, available at http://
www.al-bab.com/arab/docs/league/terrorism98.htm (last visited Mar. 20, 2003).
52. See UN Questions New US Entry Controls, BBC News, June 6, 2002, available at
www.bbc.co.uk/1/hi/world/americas/2028990.stm.
53. See S.C. Res. 1373, supra note 37, T[ 1, 2, 6.
2002 The Changed UN Response to Terrorism

Resolution 1373. Therefore, the CTC does not view itself as a human
rights monitoring body and leaves such work to others. 5 4 In addition, as
some representatives, on the CTC have noted, Resolution 1373 is, in
essence, a call to implement a regime of law. If Resolution 1373 is properly
implemented, the rule of law will be strengthened. In turn, human rights,
which depend on the rule of law for their consistent vindication, will be
strengthened.
After one year in operation, the CTC's future direction and goals
remain in a process of step-by-step clarification. The CTC could be enor-
mously effective. Its influence extends from helping countries adopt laws
regarding the abuse of charitable institutions and other devices to elude
financial regulations, to encouraging enhanced border security training
using multilateral fora, to assisting governmental organizations in the
counter-terrorism area, among other things. Conceivably, the CTC could
help the international community reach agreement on a constructive defi-
nition of terrorism. On the other hand, even States that strongly oppose
terrorism express concern from time to time about the CTC's potential to
scour deeply into a government's innermost activities.
In monitoring implementation, the CTC aims to improve worldwide
counter-terrorism capabilities and to help match countries that need assis-
tance in this area with assistance providers. Thus, it serves as a switch-
board. Even countries with substantial counter-terrorism capacity need
help, if only in the area of understanding their own vulnerabilities.
Through the CTC process and interactions with regional and sub-regional
groups, countries that have not thought of themselves as capable of provid-
ing counter-terrorism assistance are now looking at their capabilities in a
new light. For example, some small countries have great expertise in regu-
lating and monitoring financial transactions. Other countries need train-
ing in these fields. A match may be possible, fostered by the CTC. In
addition, the dialogue between States and the CTC may allow the CTC to
indicate areas in which the CTC believes a State needs assistance, even if
the State does not view itself in that light. Further, the CTC believes that it
can help regional and sub-regional organizations 5 5 leverage scant assis-
tance resources, in part because these organizations can help tailor such
resources to the needs of their particular region.
As part of the process of building a database on worldwide, counter-
terrorism assistance capabilities, in November 2001 the CTC invited all
States with the capacity to do so to contribute to the compilation of a
database of sources of advice and expertise in the areas of legislative and
administrative practice. Using this information, the Committee created a
web-based directory for assistance in the areas of activity covered by Reso-

54. See Greenstock, supra note 41.

55. Examples: The Organization of American States (OAS), the African Union (AU),
the European Union (EU), the Organization for Security and Cooperation in Europe
(OSCE), the Arab League, the Gulf Cooperation Council (GCC), the Caribbean Commu-
nity (CARICOM), the Association of Southeast Asian Countries (ASEAN), the Pacific
Island Forum (PIF), and the ASEAN Regional Forum (ARF).
 Cornell International Law Journal Vol. 35

lution 1373: drafting counter-terrorism legislation, financial law and prac-

tice, extradition law and practice, police and law enforcement work, and
56
(illegal) arms trafficking.

B. Sanctions
The Security Council was ready to respond to the terrorist acts of Septem-
ber 11 because it had already decided that terrorism constitutes an appro-
priate subject for its consideration and action. The Council had already
spent several years addressing issues related to terrorism in Taliban-ruled
Afghanistan 57 and, before that, in Libya after the bombing of Pan Am Flight
103 in December 1988.58 In August 1998, the Security Council con-
demned the attacks on UN personnel in the Taliban-held territories of
Afghanistan. 59 Later that year, the Council demanded that the Taliban
stop providing sanctuary and training to international terrorists and halt
the cultivation and production of, and trafficking in, illegal drugs.60 Then,
in October 1999, under the Presidency of Russia, 6 1 the Security Council
acted in response to several bombings of apartment buildings in Moscow
62
for which the Russian government blamed Chechen terrorists.
On October 15, 1999, the Security Council adopted Resolution 1267,
imposing sanctions on Usama bin Laden and Taliban-controlled Afghani-
stan, and the Security Council created a Committee of the Whole Council
to administer the resolution's implementation. 6 3 This Resolution obligated
all States to freeze Taliban assets and to deny permission for any Taliban-
affiliated aircraft to depart or ]and from their territory. The Resolution
directed the Committee to designate funds to be frozen and aircraft to be
denied take-off or landing rights. Because these measures are decision of
the Security Council under Chapter VII of the UN Charter, they are
mandatory on all States. 64 After the removal of the Taliban from power in

56. The directory can be found at http://www.un.org/docs/sc/committees/1373

(last visited Oct. 24, 2002).
57. See S.C. Res. 1363, U.N. SCOR, 4352d mtg. at 1, U.N. Doc. S/RES/1363 (2001);
S.C. Res. 1333, U.N. SCOR, 4251st mtg. at 1, U.N. Doc. S/RES/1333 (2000); S.C. Res.
1214, 4053d mtg. at 1, U.N. SCOR, 4051st mtg. at 1, U.N. Doc. S/RES/1214 (1998);
S.C. Res. 1193, 391st mtg. at 1, U.N. Doc. S/RES/1193 (1998).
58. See, e.g., S. C. Res. 748, U.N. SCOR, 3063d mtg., U.N. Doc. S/RES/748 (1992).
59. S.C. Res. 1193, supra note 57.
60. S.C. Res. 1214, supra note 57.
61. The Presidency (chair) of the Security Council rotates monthly according to the
English alphabetical order of the member states. See http://www.un.org/docs/
scinfo.htm.
62. See Michael R. Gordon, Another Bombing Kills 18 in Russia, N.Y. TIMES, Sept. 17,
1999, at Al.
63. S.C. Res. 1267, U.N. SCOR, 4051st mtg., U.N. Doc. S/RES/1267 (1999).
64. Article 25 of the UN Charter provides that member states agree to carry out the
"decisions" of the Security Council. U.N. CHARTER art. 25. In order to give States ade-
quate notice of the legal reach of Security Council resolutions, the Council typically
includes the word "decides" in legally binding sections of resolutions. Some Member
States incorporate such Security Council decisions into their own law without much
ado. Chapter VII of the UN Charter sets forth the Security Council's power to take
coercive action to maintain or restore international peace and security. U.N. CHARTER
ch. VlI.
2002 The Changed UN Response to Terrorism

Afghanistan and the apparent destruction of A-Qaida's bases there, the

Security Council on January 6, 2002, adopted Resolution 1390, removing
the territorial basis for the sanctions on the Taliban-instead of sanctioning
Afghanistan in order to change its policies, measures would now be
directed against "Usama bin Laden, members of the Al-Qaida organization
and the Taliban and other individuals, groups, undertakings
65
and entities
associated with them" wherever they happened to be.
The Security Council broke new ground in adopting such an
approach. In tackling the realities of transnational terrorists who employ
all means of transportation, communication, and finance, the Council has
had growing pains. In particular, the Council has discovered that its
mandatory sanctions regime can create administrative difficulties if the
targeted individuals or entities claim to have been victim of mistaken iden-
tity. The Council has tried to be practical while avoiding judicial functions
or otherwise usurping the legal obligations of governments with respect to
persons suspected of terrorism.

III. The Moral Imperative

The Security Council resolutions on terrorism adopted since September
11, 2001, frame the work of UN organs on terrorism. For most Member
States they also provide a framework and guide for action. Even without
consensus on the criminal wrongfulness of terrorism in all circumstances
much can be accomplished in such areas as capacity-building, implementa-
tion of sanctions against terrorists, their accomplices and supporters, and
international cooperation generally. Most successful anti-terrorist efforts
have resulted from multi-lateral cooperation. In working on these goals
step-by-step, UN institutions and the broader international community
may help bring about a global consensus on a definition of terrorism.
Direct progress to that end now remains stalled by those who find terror-
ism a convenient, powerful, and available weapon. These people and enti-
ties do not accept that the activities they advocate are terrorist.
The UN Secretary-General, Kofi Annan, has used his global moral
authority, enhanced when he received the Nobel Peace Prize in 2001,66 to 67
condemn terrorist acts, and call for worldwide unity against terrorism.
In a speech the day after the attacks of September 11, the Secretary-General
said, "All nations of the world must be united in their solidarity with the
victims of terrorism, and in their determination to take action, both against

65. S.C. Res. 1390, U.N. SCOR, 4452d mtg., U.N. Doc. S/RES/1390 (2002).
66. See UN, Annan receive Nobel Peace Prize at award's centennial ceremony in Oslo,
UN News Service, Dec. 10, 2001, availableat http://www.un.org/apps/news/printnew-
sAr.asp?nid=2368 (last visited Jan. 16, 2003); UN Secretary-General Kofi Annan,
Address at the Nobel Peace Prize Ceremony in Oslo, Norway (Dec. 10, 2001), available
at http://www.un.org/News/Press/docs/2001/sgsm8071.doc.htm (last visited Jan. 16,
2003).
67. See Words Alone Inadequate as Response to Terrorist Attacks, Secretary-General
Tells Opening of Fifty-Sixth General Assembly, Press Release, U.N. GAOR, U.N. Doc. SG/
SM/7951 GA/9906 (2001), available at http://www.un.org/News/Press/docs/2001/
sgsm7951.doc.htm (last visited Jan. 16, 2003).
 Cornell International Law Journal Vol. 35

the terrorists themselves and against all those who give them any kind of
shelter, assistance or encouragement. '68 On October 1, 2001, while urging
States to conclude a Comprehensive Convention on Terrorism, he said:
It will also be important to obtain agreement on a comprehensive convention
on international terrorism. In the post-11 September era, no one can dis-
pute the nature of the terrorist threat, nor the need to meet it with a global
response. I understand that there are outstanding issues, which until now
have prevented agreement on this convention. Some of the most difficult
issues relate to the definition of terrorism. I understand and accept the need
for legal precision. But let me say frankly that there is also a need for moral
clarity. There can be no acceptance of those who would seek to justify the
deliberate taking of innocent civilian life, regardless of cause or grievance. If
there is one universal principle that all peoples can agree on, surely it is
69
this.
His speech became the basis for his personal engagement in an effort, in
late autumn 2001, to push States to reach agreement. That effort so far has
failed.
The international effort to combat terrorism is over thirty years old. It
came close to agreement on a generally applicable definition of terrorism in
the immediate aftermath of the attacks of September 11, 2001. Despite the
personal efforts of the Secretary-General acting as a facilitator, prod, and
moral conscience, the Organization of the Islamic Conference (OIC), con-
sisting of 57 Islamic Member States of the UN, could not agree with the rest
of the international community on what terrorism is. The differences are
70
emblematic of the history of international discussions on terrorism.
First, the OIC wants to exclude acts directed against foreign occupation
from the terrorist label. In 2001, the reasons did not need to be declared:
the OIC wanted to exempt terrorism against Israel and terrorism against
India over Kashmir. 71 Second, the OIC wanted to brand violations of the
laws of war by State military forces as terrorist. This goal is aimed at the
Israel Defense Forces. All countries with large armies objected. Violations
of the laws of war are war crimes; they are not ipso facto acts of terrorism.

68. Id.
69. Secretary-General,Addressing Assembly on Terrorism, Calls for 'Immediate, Far-
Reaching Changes' in UN Response to Terror, Press Release, U.N. GAOR, U.N. Doc. SG/
SM/7977 GA/9920 (Oct. 1, 2001), available at http://www.un.org/News/Press/docs/
2001/sgsm7977.doc.htm (last visited Jan. 18, 2003).
70. The differences are also symptomatic of divisions among OIC member states.
For a recent and powerful example of a secular Muslim leader loosing out to the radicals
in the OIC, compare the opening speech of Malaysian Prime Minister Mahathir
Mohamad at the OIC Conference on April 1, 2002, in which he opposed terrorism
against innocents, see Carla Anne Robbins et al., Hazardous Conflict: Violence in Mideast
is Testing the Limits of U.S. War on Terror, WALL ST. J., Apr. 2, 2002, at Al, with the
Conference conclusions, which rejected the Malaysian Prime Minister's view and
retained the OIC's boilerplate language on terrorism, see Rohan Sullivan, Muslims Shy
from Defining Terrorism, CHICAGo TRIB., Apr. 4, 2002, at 3.
71. See, e.g., Statements in Security Counsel Meeting to Combat Terrorism, Press
Release, U.N. SCOR, U.N. Doc. SC/7638 (Jan. 20, 2003) (reiterating, in part, Syria's
view that the international community should define terrorism and distinguish between
it and a struggle for freedom); Committee on Terrorism, supra note 1.
2002 The Changed UN Response to Terrorism

The OIC could not accept language of a proposed compromise on these

two issues, even though the compromise bowed in the direction of strug-
gles by "peoples" under international law and contained a reference to
international law in the provisions regarding a State's regular armed forces.
The conventional wisdom concludes that the international community
will not succeed in this area until the conflicts in the Middle East and over
Kashmir come to an end. Once the international community can agree on
a definition, then it can move ahead on measures against terrorist use of
nuclear and other weapons of mass destruction. Indeed, it could even
bring to the counter-terrorism effort the array of international institutions
operating in geographical areas traditionally hospitable to terrorists. By
such time, of course, the utility and impact of achieving agreement on a
generally applicable definition may have diminished: those conflicts have
prevented agreement to date and have provided at least nominal justifica-
tions for many terrorist acts.

Conclusion: Terrorism and World Order

I began this speech with some perhaps caustic comments about the UN
world. Driven by the exigencies of the attacks of September 11, 2001, that
world took action in the counter-terrorism field that has proved and contin-
ues to prove to have a positive impact. Given the realities involved in mov-
ing any large, non-hierarchical organization in a single direction and
persuading it to act quickly; given the disparate groups and interests com-
peting to affect the activities of the UN and the international community;
given the intense debate about the agenda and use of resources; and given
the organization's and community's habits of viewing, in an almost nine-
teenth-century way, the responsibility for effective action against serious,
wide-ranging threats to peace and security as belonging to the "Great Pow-
ers," whether they act through the Security Council or not, one should
applaud the UN counter-terrorism response and its sustained effort. That
there is more to do does not invalidate what has been done.
The future work of the UN on terrorism depends, in part, on whether
there are other terrorist attacks on the scale of those of September 11,
2001. Horrible as they were, they increased Member States' incentive to
take action against terrorism and use the UN forum for doing so. In the
absence of such attacks, one may expect the CTC to remain the lead UN
counter-terrorism vehicle. Because it is the wish of Member States, the
CTC will maintain its step-by-step approach. One can expect verbal fisti-
cuffs from the effort of individual Member States or groups of States to
scrutinize through the United Nations the activities and policies of States
identified by the United States as supporting terrorists. In the absence of
usable evidence connecting one or more of those States to specific terrorist
attacks, the impact of such exchanges may be limited to rhetoric. Nonethe-
less, with every terrorist attack, it becomes more difficult for States to
defend terrorism or insist that terrorists alleged goals justify it. As a result,
terrorism makes it easier to use the United Nations against terrorists.
490 Cornell International Law Journal Vol. 35

Ultimately, terrorism is a weapon against order. For more than two

centuries, those who have fought the status quo, whether political, social
or structural, have found terrorism an attractive device. It too often
achieves at least part of the terrorists' objectives. Few if any democracies
can claim to have remained immune to the political or social claims of
terrorists. In an age of nuclear and other weapons of mass destruction, the
threat posed by terrorists can only grow. For that reason alone, world
order and order under law will be strengthened to the extent that terrorists
are prevented from carrying out their deeds. The UN can help by continu-
ing to call for high standards of counter-terrorist capacity and by helping
States meet those standards.