UNITED NATIONS GENERAL ASSEMBLY RESOLUTIONS ON TERRORISM*
Ricardo MÉNDEZ SILVA**
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SUMMARY
I. Grounding the topic. II. Keeping the peace in the United Nations. III. The General Assembly. IV. General Assembly resolutions on terrorism. V. Conclusions.
I. GROUNDING THE TOPIC
As of September 11, 2001, terrorism has sprung to the foreground of the international political agenda. This makes it necessary to review the documents regarding this issue that have been drafted by States and to determine the legal criteria that have gained consensus and the vast extension of principles and norms yet to be covered. As a first step, this study comments on the resolutions on terrorism that have been adopted by the United Nations through the General Assembly. In a latter essay the Security Council resolutions will be discussed, especially those that refer to the problem of Afghanistan as of 1996 when the Taliban faction wins the civil war and general treaties on various aspects of terrorism are been signed by States.
Approaching this issue brings copious material to light since the UN Secretary General, the International Court of Justice, the United Nations Human Rights Commission, specialized agencies, and, on a regional level, by the European Council, the European Union, the Organization of American States, and by other bodies, such as the Non-Aligned Movement, have also dealt with this issue. One basic conclusion in this brief review is that international terrorism and even terrorism that could be considered internal, if it is possible in these times to surgically dissect it, goes beyond borders, affects human rights and as it will be deduced from the documents to be reviewed, constitutes a threat to international peace and security.
II. KEEPING THE PEACE IN THE UNITED NATIONS
In order to understand the meaning and scope of the resolutions, it is fitting to make a brief outline on international peacekeeping and security within the scope of the United Nations. This was the main objective of the Organization founded in 1945. In order to attain it, the normative and structural design envisaged a system of responsibilities shared between the General Assembly and the Security Council. The latter was granted "primary responsibility" and implied the centralization of this function since the State members recognized that the council acts in their name and in their behalf. The General Assembly has an ancillary or subordinate responsibility, as clarified by the International Court of Justice Advisory Opinion "Certain Expenses of the United Nations", issued in 1961. The ancillary nature of the General Assembly in this sensitive field is seen in various aspects: a) the executive nature of the Council that can apply coercive measures against a State that breaches the peace. Said advisory opinion interpreted that the General Assembly can adopt measures that imply action as long as they are not of a coercive nature; b) the non-binding declarative nature of General Assembly resolutions as opposed to the mandatory resolutions that the Security Council can adopt, acting mainly in the light of Chapter VII of the Charter; c) the Assembly's obligation of not adopting a resolution on any case being dealt with by the Security Council.
III. THE GENERAL ASSEMBLY
The General Assembly is a body in which representatives from all the State members, currently 191, are found on an equal level: one State, one vote. Any issue of interest to the Organization can be discussed, subject to its inclusion on the work agenda, which is in turn determined by the members themselves. On this point, there is a difference in favor of the General Assembly over the Security Council, since its legal jurisdiction is broad, while the Council centers its functions on international peacekeeping and security.
The previous section mentions that Assembly resolutions lack mandatory strength, but this statement deserves to be explained in some detailed: a) officially, resolutions do not have the force of the law, but they reflect the prevailing world public opinion and reveal shared tendencies and criteria that carry significant political weight; b) resolutions, though non-binding, are themselves an exercise in codification. In other words, they imply the work of conceptualization, of legal logic, drafting and clarifying notions and principles. Most of the time, the Sixth Committee of the Assembly, which is responsible for legal issues, handles them or their preparation is entrusted to ad hoc committees that often deliberate several years on an issue, or they come from specialized bodies, such as the United Nations Commission on Human Rights. The resolutions are not mandatory, but when States disagree with the content, they vote against said resolutions or abstain from voting. This reveals the importance of the resolution and the States' interest of not setting a precedent against it; c) resolutions are not formally mandatory, but tend to refer to and direct States to the observance of conventional mandatory instruments associated with the issues in question. For example, in the case in question of terrorism, reference is made to the mandatory instruments on human rights, the Geneva Conventions of 1949 and the 1977 protocols; d) resolutions generally pose ideas that will later be complemented and developed. They can be raised to the rank of mandatory through the celebration of treaties. This has happened with numerous instruments, in matters of the law of outer space as in the law of the sea or the rights of the child, as well as in the instrument on the proscription of torture. In this sense, resolutions visibly sow future regulations; e) likewise, and alongside conventional processes, General Assembly resolutions have initiated prevailing developments. Established practice is the principal source of international law. Resolutions as important as the Universal Declaration of Human Rights or the Declaration on the Granting of Independence to the Colonial Countries and Peoples were the first sparks of very important and effective norms. In the matter of terrorism, we can specifically identify the rise of mandatory normative principles through this prevalent approach as the assertion that international terrorism goes against the purposes and principles of the United Nations Charter and poses a threat to international peace and security, with all its legal and institutional consequences; f) a resolution can include an existing prevalent norm, generally recognized by States, whether its entire text or some specific matters. Thus, since it is not officially mandatory, it attains this distinction based on the prevalent norm that is incorporated; g) for several years, some doctrine scholars have addressed "instant established practice" when referring to all those resolutions from international bodies, mainly the General Assembly, that create a legal norm on having been accepted by consensus. The repetition of these conducts, a necessary element in legal established practice, is replaced by general agreement in international forums.
Of course, in practice, what prevails is that States with a conventional view and political mistrust toward the work of the majorities will deny the mandatory nature of General Assembly Resolutions under any circumstance. However, on the other hand, the interrelationship with the general body of international law in/on several levels of the resolutions makes it equally difficult for these to be denied binding force in certain cases.
IV. GENERAL ASSEMBLY RESOLUTIONS ON TERRORISM
In this point, certain types are evident: a) resolutions on international law in general that refer to the problem of terrorism and b) resolutions that deal with the specific problem of terrorism. It is worth noting that the General Assembly's responsibility goes hand in hand with and is determined by historical events, by the fundamental concerns at the time the recommendations are drafted and approved.
1. Resolutions on International Law in General that Refer to the Problem of Terrorism, Listed Chronologically
A. Resolution 2131 (XX) of December 21, 1965
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty
It is known that the United Nations Charter did not expressly mention the principle of non intervention, unlike the OAS Charter signed in Bogota in 1948. The prohibition of intervening in domestic affairs is purportedly found in Article 2, in the celebrated paragraphs four and seven. Paragraph four indicates that State members shall abstain from the threat or use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Meanwhile, paragraph seven states that the Organization has no authority to intervene in matters that are "essentially within the domestic jurisdiction of any state" without prejudice to the application of the Council of Security's coercive enforcement measures under Chapter VII. Therefore, the prohibition of threat or the use of force would prohibit interfering acts when they show use of force. On the other hand, the express prohibition of the Organization to intervene in matters that are "essentially within the domestic jurisdiction of any state" should be understood as implicitly extending to Members, under the assumption that what is prohibited to the Organization is also prohibited to the States. What is true is that an express provision was not included in the Charter signed at San Francisco and the situations that may include acts of intervention in a country's life go beyond the field covered by the cited paragraphs of Article 2. Therefore, the General Assembly approved this resolution in December 1965, with the backdrop of the Vietnam War that had entered the stage of a growing threat due to the Tonkin Gulf incident of the previous year.
In terms of terrorism, the Resolution set forth that no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. The prohibition of these activities are related to the specific purpose of intervening in the life of other States, especially for the purpose of overthrowing a government or interfering in a civil war. It is not an absolute prohibition.
It is fitting to stress that the resolution itself clarified that nothing in the Declaration should be construed as affecting the relevant provisions of the Charter of the United Nations relating to the maintenance of international peace and security, in particular those contained in Chapters VI, VII and VIII, that is, those relating to Security Council functions, in view of the above. The principle of non-intervention, which can even be recognized as an imperative norm of international law, should be tied in with peacekeeping instruments that act in response to the prohibition of the use of force or threat in international relations, which is likewise an imperative norm of international law.
B. Resolution 26/25 of October 24, 1970
Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations
This resolution was adopted on the occasion of the 25th anniversary of the United Nations, precisely on its effective date. It offered the view of the prevailing state of international law, in accordance with the Charter of the United Nations, but also with the principles of Friendly Relations that were defended by non-aligned countries at the 1955 Bandung Conference. It included the separation and itemization of seven principles. It is the typical case of a recommendation whose binding effect lies in the act of including mandatory principles and declarations contained in other conventional or validated instruments, such as prevalent legal norms. This is similar to the case of Resolution 2131 on Non-Intervention.
Of particular interest is Principle 1, found under the following heading: "The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations", which again refers to the precept in Article 2, paragraph 4, and elaborates on it. This normative addition to the declaration states: "Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State". Likewise, it states that:
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.
It is clear that the general prohibition on a State's use of force includes that even within its territory it cannot organize terrorist activities against other States. The use of force does not diminish with a direct attack or aggression. This fully coincides with the tolerance or complicity of the Taliban government in Afghanistan with the Al Qaeda organization. What happened as of 1996 with the victory of the so-called students of the Koran and the lenient attitude towards the establishment of terrorist bases and camps on Afghan territory was an express violation of international law, which would be identified in subsequent resolutions. International terrorism is a threat to international peace and security and can become a transgression against them. The instrument of peace initially foreseen for inter-State relations, through the surge of international terrorism, its transnational ramifications, of possible complicity with certain governments, has been able to include these non-State agents.
It is fitting to point out that Resolution 26/25 has been cited in almost every resolution that has dealt with the problem of terrorism. This indicates that the two paragraphs transcribed in this point are the cornerstones of the regulation and express the world's States' consensus regarding its mandatory nature.
C. Resolution 3312 on the Definition of Aggression of December 14, 1974
The General Assembly approved the Definition of Aggression in 1974, a long delayed issue in international law. However, the definition was controversial since recognizing the right of colonial peoples and those subjected to foreign occupation to use force and receive help gave rise to fierce opposition from Western capitalist countries. A range of criteria still exists. With the approval of the Rome Statute of the International Criminal Court in 1998, the definition of the crime of aggression, on which the Court would have jurisdiction, has been left pending for a later Conference. Something similar happens with the crime of terrorism, which can be identified and the object of angry disapproval, but States have not arrived at a definition. Other than commit themselves to an exercise of legal technical, they argue for safeguards that allow them to remain unfettered to be admitted.
The definition indicates that the sending by or on the behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State qualifies an act of aggression of such gravity as to amount to acts carried out by States. Along this line of thought, it is stipulated that bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another is an act of aggression. The term "terrorists" was not used, but the term "irregular groups" was. On the other hand, it mentions that the use of weapons against the territory of another State is an act of aggression. Speculation still exists as to whether the use of civilian airplanes to perpetrate an attack can be compared with a weapon. These digressions may be extremely conventional, but they illustrate the difficulty of having a generally accepted definition and reveal the flaws that defense attorneys could make use of in the case of litigation.
Despite all this and the heated discussions that Resolution 3314 still raises, it has been repeatedly cited in a good number of resolutions on terrorism, in two senses: in considering the dispatch of irregular bands as an aggression and also because several of the resolutions were drafted under the influence of the process and decolonization rights and reference was made to the rights of national liberation movements in their fight for independence, although it never went as far as to explicitly support terrorist acts.
2. General Assembly Resolutions on Terrorism
The historical framework that was the contributing factor of the United Nations was the interplay among States. The individual was not then subject to international law. In turn, the governments shielded themselves under the mantle of sovereignty to hide and justify their excesses. That explains why the charter signed in San Francisco would come to regulate inter-State relations and why institutional attention to terrorism would come years later. The concern of the framers of the Charter was an international security that could be fractured by government incursions and State expansionism. Challenges from private groups, organized crime, mercenaries or terrorists, often associated among themselves and colluded with governments or officials from these governments, were far from being seen as a possibility. Nowadays, discussion centers on "asymmetric warfare" in order to identify the network of groups that resort to anonymity and the cover of globalization to face States on intangible ground.
Thus, the work of the General Assembly in terms of terrorism began in the early 1970s. Two sections stand out: the one that covers international terrorism which in itself comes from the consideration of international proceedings and that of terrorism in general, that has also called international attention since it affects human rights instruments. It is sufficient to say that the work of the General Assembly has focused on the case of international terrorism, but it has also adopted resolutions on terrorism and human rights specifically. They are dealt with separately. In both cases, the resolutions are presented in chronological order.
Measures to prevent international terrorism which endangers of takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.
The name of this resolution is long, as is its life since its name would christen Assembly General resolutions until 1991 when they received another name: measures to eliminate terrorism or human rights and terrorism. Resolution 3034 was the first one to specifically concentrate on dealing with the problem of terrorism. There were three historical contributing factors: a) the tragic incident of the Israeli athletes kidnapped by a Palestinian commando that led to the death of several athletes and terrorists during the failed rescue attempt headed by German police force: b) the statistical influence of the State Members of the then-called Third World in the General Assembly: c) the decolonization process that was still kept active mainly by the case of Namibia, one of the Portuguese colonies, and the Israeli occupation of Palestine. Thus, the contents of the Resolution discussed the following points:
—Deep concern over increasing acts of violence which endanger or take innocent lives or jeopardize fundamental freedoms is expressed.
—The need for States to find just and peaceful solutions to the underlying causes which give rise to such acts of violence.
—The reaffirmation of the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and the upholding the legitimacy of their struggle.
—The condemnation of the continuation of repressive and terrorist acts by colonial, racist and alien regimes.
—The invitation to States to become parties to the existing international conventions which relate to various aspects of the problem of international terrorism.
—The call to the States to take all appropriate measures at the national level with a view to the speedy and final elimination of the problem, bearing in mind the inalienable right to self-determination and independence of peoples under colonial regimes.
—The opening of the administrative work of the UN on International Terrorism by establishing an Ad Hoc Committee consisting of thirty-five members to be appointed by the President of the General Assembly.
In the preamble, the Resolution makes reference to the importance of international cooperation in devising measures effectively to prevent the occurrence of terrorist attacks and of studying their underlying causes.
Comments can be made on three levels. First, issues that up to then were buttresses for approaching the issue were defined: the importance of international cooperation to prevent the problem, the growing number of acts of violence that since then have been manifest, the need for States to join conventional instruments concerning international terrorism and to similarly adopt the appropriate means on a domestic level for its speedy elimination, the urgency to confront the underlying causes of acts of terrorism. Second, the Resolution and several of those that followed included the legitimacy of the struggle of national liberation movements against colonial, racist and alien regimes. Although it clarified that said struggles had to comply with the principles of the Charter and the corresponding resolutions of United Nations bodies, it did not include an express condemnation of terrorism applied in anti-colonial conflicts. Even now, separatist group activities are sought to be excluded from the prohibitions of the fight against terrorism. Third, having been the first resolution, it would be supplemented in later works. For example, after having overcome ideological encumbrances and having terrorist attacks become more serious, the problem would be identified as a threat to international peace and security and violating human rights instruments.
b. Resolutions 32/147 of December 16, 1977; 34/145 of December 17, 1979; 36/109 of December 10, 1981; 38/130 of December 19, 1983; 40/61 of December 9, 1985; 42/159 of December 7, 1987; 44/29 of December 4, 1989
These resolutions are grouped together in this same section because they have the same name as those above, as mentioned: Measures to prevent international terrorism which endangers of takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.
The texts of these resolutions reiterate the concerns originally posed in 1972: the growing number of terrorist acts, the need for international cooperation to prevent terrorism, the study of its underlying causes, the reiteration of the right to self-determination and independence, the call to states to become parties to conventions which relate to this matter and to take the appropriate domestic measures, the exhortation of the Ad Hoc Committee on International Terrorism to continue its work and to recommend measures to eliminate the problem.
However, the points adopted in 1971 begin to acquire more weight and the range of principles that tend to regulate and take on international terrorism begins to broaden. The following points stand out:
—Acts of terrorism are associated with the pernicious impact to friendly relations among States as well as international cooperation, including cooperation for development.
—They unequivocally condemn, as criminal, all acts, methods and practices of terrorism wherever and by whomever committed.
—In 1987, the need to succinctly define terrorism is posed as a way to effectively deal with it.
—Among the conventions that should be taken into account are those referring to international humanitarian law: the Geneva Conventions of 1949 and their two Protocols of 1997. This mention is found in some of the last recommendations on the Afghanistan crisis. However, one of the most widely debated and censure points these days is the Government of the United States' refusal to treat as war prisoners the Taliban and Al Qaeda member detainees.
—The principle contained in Resolution 2625 of 1970 referring to the duty of every State to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State, or acquiescing in organized activities within its territory directed against another State.
—They propose the harmonization of domestic legislation with international law, the implementation of international obligations, and emphatically reiterate the need to prevent the preparation and organization in their respective territories terrorist attacks directed against other States.
—Terrorism is defined as endangering the constitutional order of States and violating basic human rights.
—The need to enhance the role of the United Nations in combating international terrorism is stressed.
—There is a request to specialized agencies and intergovernmental organizations to consider what further measures can usefully be taken to combat and eliminate terrorism within their respective spheres of competence. Particularly mentioned are the Universal Postal Union, the World Tourism Organization, the International Atomic Energy Agency and the United Nations Educational, Scientific and Cultural Organization, the International Civil Aviation Organization and the International Maritime Organization.
—States are urged to cooperate more closely with one another, especially in the exchange of information and to conclude special agreements or to include in bilateral treaties relevant clauses on the extradition of perpetrators of terrorist acts so said perpetrators may be duly prosecuted.
—Concern at the growing links between terrorist groups, drug traffickers and their paramilitary gangs is expressed.
—A firm call is made for the immediate and safe release of all hostages and abducted persons, wherever and by whomever they are being held.
The above resolutions furthered the understanding of the problem and previous conclusions evolved. Between 1977 and 1989, the government of the Shah of Iran, Reza Pahlavi, had been overthrown. This opened the doors to Islamic integrism and exalted the extremist and fanaticized movements that propelled terrorism with clearly religious undertones. Strictly political assertions found their channels in political participation, shaped by the end of the Cold War, the overcoming of anti-colonial struggles, the return to democratic life or the establishment of democratic systems in many countries. In this sense, the occurrence was favorable, but the yearned for "end of history" proclaimed by dreamers was not even the end of prehistory. Islamic integrism and other kinds of fanaticism bred by radical Jews, Christian white supremacists, and exacerbated by nationalist and ethnic opposition, by organized crime, drug traffickers, arms traffickers, people traffickers and criminal ties with governments were in the foreground. They presented their challenges. Their greatest achievement was witnessed by the world via television on September 11, 2001.
Measures to eliminate international terrorism. This was the resolution that changed the name of the previous one and that would in turn be used for later resolutions. However, it continued to refer to the right of self-determination, freedom and independence regarding colonial and racist regimes and other forms of alien domination. As to foreign resolutions, no new element was added. However, it is worth mentioning the aspects insisted upon: the unequivocal condemnation of terrorism as criminal and unjustifiable; the obligations of states to refrain from organizing, instigating, assisting or participating in terrorist acts in other States or acquiescing in or encouraging activities within their territory directed towards the commission of such acts; ensuring the apprehension and prosecution of perpetrators of terrorist acts; the immediate and safe release of all hostages and abducted persons, the growing and dangerous links between terrorist groups, drug traffickers and their paramilitary gangs, among other issues dealt with previously.
Measures to eliminate international terrorism. This resolution, adopted in the mid-1990s, is considered one of the most important documents in the trend to conceptualize the problem of international terrorism and would appear as a mandatory reference in later resolutions. First of all, it urged that every effort be made in order that the Declaration becomes generally known and is observed and implemented in full and invited the Secretary General to follow up closely its implementation. It also urged all State members to promote and implement in good faith and effectively the provisions of the Declaration in all its aspects. At the beginning of this work the legal force General Assembly resolution can have by means of the creation of prevalent norms or because they represent the legal consensus of the States.
It should be highlighted that compliance to an instrument in good faith has been set aside in international law to the law of treaties. By including this phrase, the resolution approaches the field of binding documents.
It is in fact the most cited resolution, along with the one that supplemented it two years later. It summed up the principles and guidelines that had been worked on since 1972. Verbi gratia, it expressed its concern over the world-wide persistence of acts of international terrorism in all its forms and manifestations, including those in which States are directly or indirectly involved, which endanger or take innocent lives, and affect international relations and the security of States.
Likewise, it denounced the dangerous links between terrorists, and drug traffickers and their paramilitary gangs; reaffirmed its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable; insisted that States must refrain from organizing, instigating, assisting or participating in terrorist acts in territories of other States, or from acquiescing or encouraging activities within their territories directed towards the commission of such acts; stressed the duty of States to refrain from organizing, instigating, facilitating, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that their respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts against other States or their citizens. A call is made for States to take all steps necessary to implement the existing international conventions on this subject to which they are parties, including the harmonization of their domestic legislation with these conventions, and States that have not yet done so are urged to consider, as a matter of priority, becoming parties to the international conventions and protocols on this matter.
On the other hand, some new ideas and elements were brought in. They are listed separately in order to facilitate their explanations.
—It expressed its concern by the increase, in many regions of the world, of acts of terrorism based on intolerance or extremism, which as said before found a gateway with the triumph of the Islamic Revolution in Iran in 1979.
—It stated that those responsible for acts of international terrorism must be brought to justice. This idea was contained in the recommendation to extradite and process the perpetrators of terrorist acts, but the drafting was a prelude of that stated in the Resolution of September 12, 2001, adopted the day after the ominous terrorist attacks in the United States.
—It pointed out that acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardize friendly relations among States, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society. While some of these elements had already been considered, it is important to stress the precision with which international terrorism constitutes a grave violation of the purposes and principles of the United Nations and pointed out that it "may" pose a threat to international peace and security. Later, in other resolutions, especially in those from the Security Council, after the September attacks, it is categorically affirmed that terrorism is a threat to international peace and security. The word "scourge" is even used to define it. This identifies its seriousness with the two World Wars, as mentioned in the Preamble of the Charter. While the Assembly General and Security Council's dealing with the problem of terrorism means it is not a domestic issue, conceiving it as a possible threat to international peace and security paves the way for opening the competency of both bodies, and not only reduced to the scope of deliberative duties, but also to attain that actions are adopted.
—By stating that terrorist acts are in any circumstance unjustifiable outlines a definition, while incomplete, because it refers to a complex problem in itself. A general notion has to be supplemented with a list of specific hypotheses, for example, attempts against rulers or taking hostages and kidnappings. However, this outline of a definition considers terrorism as criminal acts intended to provoke a state of terror in the general public, a group of persons or particular persons for political purposes. It gives the finishing touch by saying that they are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. In the absence of a definition of terrorism in international law or in United Nations resolutions, here a preliminary concept emerges that attempts to identify these acts in which the political ends gain importance and that encompasses other purposes generically.
—It indicated that appropriate measures must be taken, before granting asylum, for the purpose of ensuring that the asylum seeker has not engaged in or will not organize terrorist activities. It contemplates two possibilities: a) not granting asylum to a person who is involved in terrorist acts, b) after a person has acquired refugee status, preventing the person's involvement in terrorist acts, imposing the corresponding punishment, withdrawing the benefit of refugee or proceed to the person's extradition before the jurisdiction that so brings action against him and where he can be tried. This innovation poses the lure of making various comments. It is obvious that asylum should not be legal protection to grant terrorist impunity. One of the problems the UNHCR has faced in different regions and countries is the use of refugee camps precisely as a shelter for guerrilla groups and terrorists to intermingle with the protection population. Said camps can also be sued as platforms to attack their countries of origin or even against the country receiving them, given the complex situations that are woven in the conflicts of our times that can easily be polarized. On the other hand, asylum in the world is going through distressing problems. The massive flows of people in search of asylum run into the incomprehensive attitude of governments everywhere that pretend not to know the right of the persecuted to seek shelter. What was considered an "imperative norm of international law", not to be returned at the border, has suffered daily, scandalous violations. The majority of the States attempt to renounce their obligations and indiscriminately refuse asylum. The danger with this recommendation is to officially open up an exception that can be used as an excuse to contravene the humanitarian asylum system. Therefore, it should be watched more carefully, and in any case, affirmed that the general norm alongside this exceptional situation should be handled as such, as truly exceptional.
Measures to eliminate international terrorism. In the context of the Tokyo subway attack and the assassination of Israeli Prime Minister Isaac Rabin and the persistence of terrorist acts in different places, the contents of Resolution 49/60 reaffirmed its call to States to promote and implement in good faith and effectively the provisions of the Declaration. It reiterated the outline of the above-mentioned definition: "criminal acts intended to provoke a state of terror in the general public, a group of persons or particular persons for political purposes". Two innovations were included:
—All States are exhorted to contribute to the further development of international law on this matter.
—The role of the Security Council is recalled in combating international terrorism whenever it poses a threat to international peace and security.
Measures to Eliminate International Terrorism annexed the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism. In my opinion, this resolution and annexed declaration seem to be more important and clearer than Resolution 49/60 of 1994, which was welcomed as the pivotal declaration in this matter. It reiterates principles, but broadens and strengthens them while introduction new elements and concerns, which reflects the growing gravity of world-wide terrorism and the understanding the Organization was gaining by confronting the problem. At this point, I prefer to list the outstanding points jointly, those that have been reiterated or that appear as new elements:
—It reaffirmed that acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations.
—Reference was made to the possibility of the elaboration of a comprehensive conference on international terrorism.
—It noted that terrorist attacks by means of bombs, explosives or other incendiary or lethal means had become increasingly widespread.
—The need to enhance international cooperation to prevent the use of nuclear materials for terrorist purposes was recognized.
—The need to strengthen international cooperation to prevent the use of chemical and biological materials for terrorist purposes was likewise recognized.
—All States were called upon to recommend that the relevant security officials undertake consultations to improve the capability of Governments to prevent and investigate terrorist attacks on public facilities, in particular means of public transport.
—A request was made to accelerate research and development regarding methods of detection of explosives and other harmful substances that can cause death or injury, undertake consultations on the development of standards for marking explosives in order to identify their origin in post-blast investigations, and promote cooperation and transfer of technology, equipment and related materials.
—States were requested to note the risk of terrorists using electronic or wire communications systems and networks to carry out criminal acts and the need to find the means, consistent with national law, to prevent such criminality and to promote cooperation.
—A call was made to investigate the abuse of organizations, groups or associations, including those with charitable, social or cultural goals, by terrorists who use them as a cover for their own activities.
—States are called upon to take steps, through appropriate measures, to prevent and counteract the financing of terrorists through organizations which are engaged in unlawful activities such as illicit arms trafficking, drug dealing, the exploitation of persons for purposes of funding terrorist activities.
—States are also called upon to intensify the exchange of information on facts related to terrorism and, in doing so, to avoid the dissemination of inaccurate or unverified information. Along the same line of thought, they are urged to share expertise and information about terrorists, their movements and their weapons.
—States were called upon to refrain from financing, encouraging, providing training for or otherwise supporting terrorist activities.
—The recommendation of not granting asylum to persons who have participated in terrorist acts, and after granting an asylum seeker with refugee status, that the States ensure that that status is not used for the purpose of preparing or organizing terrorist acts intended to be committed against other States or their citizens. Likewise, it pointed out that asylum-seekers who are awaiting the processing of their asylum applications may not thereby avoid prosecution for terrorist acts.
—The importance of ensuring effective international cooperation so that those who have participated in terrorist acts are brought to justice was again stressed.
—States are encouraged to take all appropriate steps to extradite terrorists and not to regard as political offenses connected with terrorism. States are also encouraged, even in the absence of a treaty, to consider facilitating the extradition of persons suspected of having committed terrorist acts, insofar as their national laws permit.
g. Resolutions 52/165 of December 15, 1997; 53/108 of December 8, 1998; 54/110 of December 9, 1999; 55/158 of December 12, 2000
All of these Resolutions are entitled "Measures to eliminate international terrorism.
These resolutions contained brief texts and simply reiterated in a general way the previously embodied principles. Their value lies then in this reiteration which gives prevalent force to the statements. The need to draft an International Convention for the Suppression of Terrorism stands out in their concerns, as well as that of convening a high-level conference on this matter. It is explained that consideration on the problem has not been enhanced because the work of recapitulating and innovating had been accomplished in Resolutions 49/60 of 1994 and 51/210 of 1996. Likewise, it is understood why the double attack against US embassies in Africa took place and the Security Council clearly intervened in the problem of international terrorism associated with the threat of the Taliban government and the Al Qaeda terrorist organization. Moreover, in 1999, the Security Council demanded that the Afghan government deliver Osama Bin Laden.
On the day after the attacks, the General Assembly approved a resolution that was brief and strong in its condemnation. As of that moment, as could already be seen since 1998, the Security Council had been the one in command and had approved a number of important resolutions, the majority of which were in accordance with Chapter VII and which require a study of their own. The General Assembly, guided by the purposes and the principles of the Charter signed in San Francisco, strongly condemned the heinous acts of terrorism, which have caused enormous loss of human life, destruction and damage in the cities of New York, host city of the United Nations, Washington, D.C., and in Pennsylvania. It expressed its condolences and solidarity with the people and Government of the United States and urgently called for international cooperation to bring to justice the perpetrators, organizers and sponsors of the "outrages of 11 September 2001". It also urgently called for international cooperation to prevent and eradicate acts of terrorism and stressed "that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of such acts will be held accountable". I have transcribed the last phrase, contained in the fourth paragraph of the resolution because it is the same text that was included in Resolution 1368 (2002) approved by the Security Council on the same date, September 12, 2001. The fact that both resolutions mention that the perpetrators and those responsible for aiding the perpetrators shall be held accountable for their acts reveals that suspicions existed regarding the origin of the attacks and the complicity of the Taliban government in high-level diplomatic circles, even though this indication took a week to be made public.
Resolution on Human Rights and Terrorism. Though short, this resolution contained conceptual innovations. The first attack against the Twin Towers had taken place, as had the World Conference on Human Rights in Vienna in June. The points that stood out were:
—The preamble was based on human rights instruments, the Universal Declaration of Human Rights of 1948 and the Covenants of 1966.
—The right to life was declared the most essential and basic human right.
—It reiterated that all Member States have the obligation to promote and protect human rights and fundamental freedoms, and it proclaimed that every individual should strive to secure their universal and effective recognition and observance. In other words, it is not only the State's obligation to be involved in abstaining or directly intervening in social life to ensure respect to human rights, but in its persistently universal essence, it includes the individual to attain full observance.
—It stipulates that terrorist groups perpetrate gross human rights violations. If we accept the fact that an individual must ensure the observance of human rights, and terrorist groups inflict severe violations of said rights, we cannot be satisfied with the age-old consignment of Black September that no one is innocent and that we are all guilty.
—Along this line of thought, the increasing number of innocent persons, including women, children and elderly, killed, massacred and maimed by terrorists through violence and terror, which cannot be justified under any circumstance, is deplored.
—Consequently, all acts, methods and practices of terrorism in all its forms and manifestations as activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences on the economic and social development of States, are condemned.
Human Rights and Terrorism. A few days after the celebrated Resolution 49/60 was adopted, the General Assembly adopted this resolution which is practically the same as Resolution 48/122 of December 20, 1993. Its importance resides in not containing new elements, but in reiterating the principles launched a year before, taking into account that the repetition of the statements paves the way for the establishment of prevalent norms. Any reader interested should therefore go back to the text and contents of Resolution 48/122, but it is wise to high light the strength of the line in the inveterate consuetude: the right to life is the most essential and basic human right, every individual should strive to secure universal and effective recognition and observance of human rights, and that terrorist groups perpetrate gross human rights violations.
In harmony with the two previous resolutions on this matter, this one includes the insistence on the right to life, the unequivocal condemnation of all acts of terrorism, but includes the following:
—It condemns the violations of the right to live free from fear and of the right to life, liberty and security.
—It condemns incitement of ethnic hatred, violence and terrorism.
Very significantly, it states in the preamble that all the measures to counter terrorism must be in strict conformity with the relevant provisions of international law, including international human rights standards. This mention is not repeated in other resolutions, but it anticipated a basic concern of the events that have followed the September 11th attacks: the violation of basic norms of international humanitarian law and the undermining of individual freedoms and the legal assurances of due process of law.
V. CONCLUSIONS
The General Assembly began to examine the problem of terrorism in 1972. Since then, they have produced a long line of recommendations that have extended the guiding principles that tend to norm international cooperation in this matter. While not mandatory, the recommendations impress significant weight and achieve consensus on such a sensitive topic and in which States can hardly dissent on its core elements. With independence in their legal force, the Assembly has gone on to shape the guidelines and criteria that the Security Council has followed and made its own as of September 12th.
One of the points the General Assembly has examined is the need to have a universally accepted definition of terrorism and to draft a framing treaty that includes both the principles created by the deliberative body and the systems that have adopted in the treaties that deal with concrete aspects of terrorism. Among these concerns, repeated calls have been made to ratification and adhesion to these conventional instruments. What prevails is the conviction that clear bases, well-defined commitments and international cooperation are indispensable to confront terrorism.
Along the same line of thought it maintains the certainty that the role of the United Nations in the fight against terrorism should be strengthened and that the cooperation of specialized agencies and regional bodies should be articulated.
In addition to the prevailing concern of attacking the underlying causes that engender the problem of terrorism, the domain of interest to understand police or military issues, information systems and electronic communication networks, financing and cooperation in terms of information and intelligence, among other points of vital interest.
What stands out is the early connection detected between terrorism, drug trafficking, arms trafficking, people trafficking and transnational organized crime in general.
Only one resolution made reference to the need to observe human rights standards in the fight against terrorism. This point is called to be a major topic in the discussion on this matter, in domestic and international regulation and in international cooperation. Likewise, as long as it has been established that terrorism violates the purposes and principles of the United Nations Charter, and poses a threat to international peace and security, the fight against terrorism should be carried out in strict adherence to international law. It is not possible to invoke multi-lateralism and international cooperation on the one hand and to insist on unilateralism and disregard international law with singular delight on the other. Precisely one of the causes that have caused surges of terrorism is the non-observance to international legal statutes, the impudence of governments to act only in terms of short-term political interests. One fundamental strategy to suppress indiscriminate violence of groups and bands in what has been popularly called the "asymmetrical wars" is the fulfillment of legal obligations. It is as easy and as difficult as that.
Notes
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute.
