UN Response to Terrorism: the example of 9/11 attack

by Panagiotis Kontakos,

Introduction

Terrorism has become a phenomenon of contemporary life, which contains a wide range of threats against the security and welfare of individuals, stability of the state’s political system, economic development and democracy. Contemporary terrorists are organized and well-equipped, provided that technological developments offer them new technical possibilities. The United Nations is at the forefront of the global counter-terrorism effort. Following the 9/11 attack, the need for international cooperation and global policy efforts indicated the primordial role of the United Nations in the fight against terrorism. This analysis presents the legal reaction of the United Nations against global terrorism under the perspective of the horrendous attack of 9/11.

The 9/11 Attack

The attacks dated 11 September 2001 occurred between 8:14 and 10:10 in the morning. Four U.S. domestic commercial airlines were hijacked by 19 Arab men. The hijackers crashed one airplane into each of the two towers of the World Trade Center, one plane into Pentagon and the fourth plane in Shanksville, Pennsylvania. (CNN, 2001) The attacks caused the deaths of at least 2,996 people including the 19 terrorists. Five years after the attacks, lives were still being lost due to effects, such as cancer and respiratory diseases. The total losses of human lives cannot be accurately calculated and known. (Hirschkorn, 2003)

The terrorists who perpetrated the 9/11 attacks were non-state actors. Out of the 19 hijackers, 15 of them were from Saudi Arabia, 2 were from the United Arab Emirates, 1 was from Egypt and 1 from Lebanon. The mastermind behind the attack was a Kuwaiti, Khalid Sheikh Mohammed. The latter was captured by Pakistani security agents working with the Central Intelligence Agency (CIA) during the American response to the attack. He revealed that targeting the country’s economy was an adequate way to influence U.S. policy. All people responsible for the 9/11 attack were connected to each other through a common affiliation with Al Qaeda. (States, 2004, pp. 153-155)

Suspicion quickly after the attacks fell on Al Qaeda. The United States responded by launching the War on Terror and invading Afghanistan to depose the Taliban, which had failed to comply with U.S. demands to extradite Osama bin Laden and expel al-Qaeda from Afghanistan. Although Osama bin Laden initially denied any involvement, in 2004 he claimed responsibility for the attacks. After evading capture for almost a decade, bin Laden was located in Pakistan and killed by SEAL Team Six of the U.S. Navy in May 2011, during the Obama administration. (Bodansky, 2001, pp. 408-410)

Al Qaeda

Al Qaeda is an international terrorist organization led by Osama bin Laden, a Saudi national whose citizenship was revoked in 1994. Al Qaeda operates as a network of Islamic extremists and Salafist jihadists. Its envision concerns the removal of all foreign influences from Muslim countries. (Bodansky, 2001, p. 10)

The Taliban, an Islamic fundamentalist political movement and military organization in Afghanistan provided bin Laden with the freedom to pursue his terrorist operations. In 1996, Khalid Sheikh Mohammed met with bin Laden. The idea was to use planes as weapons in order to operate the 9/11 attack. In late 1998 or early 1999, Osama bin Laden approved the plan for the 9/11 attack. At the same time, Khalid Sheikh Mohammed became a member of Al Qaeda and the chief manager of the 9/11 operation. (Bodansky, 2001, pp. 30-32)

The International Legal Framework

The 1999 International Convention for the Suppression of the Financing of Terrorism provides a generic description of terrorist acts for the purposes of financing terrorism. According to the Article 2.1 of the Convention, “Any person commits an offense within the meaning of this Convention, if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

• An act which constitutes an offense within the scope of and as defined in one of the treaties listed in the annex; or
• Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a part of the population, or to compel a government or an international organization to do or to abstain from doing any act.”

There is a series of sixteen international conventions and protocols related to the prevention of terrorism. They are binding on State Parties and they are presented below:

The 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft (Aircraft Convention) (deposited with the International Civil Aviation Organization) applies to acts affecting the safety of flights and enables the application of measures-restraints to any person the aircraft commander has reason to believe that has committed or is about to commit such an act, where necessary to protect the safety of the aircraft.

The 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Unlawful Seizure Convention) (deposited with the International Civil Aviation Organization) requires State Parties to establish as an offense the act or attempt of any person in flight to “unlawfully, by force or threat thereof, or any other form of intimidation, seize or exercise control of that aircraft”.

The 1971 Convention for Suppression of Unlawful Acts against the Safety of Civil Aviation (Civil Aviation Convention) (deposited with the International Civil Aviation Organization) requires State Parties to consider an offense: the unlawful and intentional act of violence against a person on board if that act is likely to endanger the safety of the aircraft; the placement of an explosive device on an aircraft; the attempt of such acts; the fact that a person is an accomplice of another person who performs or attempts to perform such acts.

The 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (Diplomatic Agents Convention) (deposited with the Secretary-General of the United Nations) defines an “internationally protected person” as a Head of State, Minister for Foreign Affairs, representative or official of a State or international organization, who is entitled to special protection in a foreign State, and his/her family. The Convention requires the State Parties to punish “by appropriate penalties which take into account their grave nature” the international murder, kidnapping or another attack upon the person or liberty of an internationally protected person, a violent attack upon the official’s premises, the private accommodations, or the means of transport of such person. The Parties have to criminalize a threat or attempt to commit such an attack as well as an act “constituting participation as an accomplice”.

The 1979 International Convention against the Taking of Hostages (Hostages Convention) (deposited with the Secretary-General of the United Nations) states that “any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person, in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offense of taking of hostage within the meaning of this Convention”.

The 1980 Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention) (deposited with the International Atomic Energy Agency) criminalizes the unlawful possession, use, transfer or theft of nuclear material and threats to use nuclear material in order to cause death, serious injury or substantial property damage.

The 2005 Amendments to the Convention on the Physical Protection of Nuclear Material (deposited with the International Atomic Energy Agency) makes it legally binding for States Parties to protect nuclear facilities and material in peaceful domestic use, storage as well as transport; enhances expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences and chances of sabotage; and includes prevention and combat-related offenses.

The 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Airport Protocol) (deposited with the International Civil Aviation Organization) extends the provisions of the Montreal Convention on Air Safety to encompass criminal acts at airports serving international civil aviation.

The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Maritime Convention) (deposited with the International Maritime Organization) establishes a legal regime applicable to acts against international maritime navigation that is similar to the regimes established for international aviation.

The 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (deposited with the International Maritime Organization) criminalizes the use of a ship as a device to commit an act of terrorism.

The 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (Fixed Platform Protocol) (deposited with the International Maritime Organization) establishes a legal regime applicable to acts against fixed platforms on the continental shelf that is similar to the regimes established for the protection of international aviation.

The 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (deposited with the International Maritime Organization) adapts the changes to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation to the context of fixed platforms located on the continental shelf.

The 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection (Plastic Explosives Convention) (deposited with the International Civil Aviation Organization) was designed to control and limit the use of unmarked and undetectable plastic explosives.

The 1997 International Convention for the Suppression of Terrorist Bombings (Terrorist Bombing Convention) (deposited with the Secretary-General of the United Nations) creates a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into, or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place.

The 1999 International Convention for the Suppression of the Financing of Terrorism (Terrorist Financing Convention) (deposited with the Secretary-General of the United Nations) requires Parties to prevent and counter the financing of terrorists, whether direct or indirect.

The 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention) (deposited with the Secretary-General of the United Nations) covers a broad range of acts and possible targets, including nuclear power plants and nuclear reactors; deals with both crisis situation and post-crisis situations. (UNOCD, 2009, pp. 27-30)

The Resolutions of the United Nations

The Security Council adopted several resolutions relating to counter-terrorism and established an international sanctions regime against Al-Qaida and the Taliban that is binding on all States. The Resolution of 1267 (1999) was followed by the Resolutions: 1373 (2001), 1456 (2003), 1540 (2004), 1566 (2004), 1624 (2005). (UNOCD, 2009, p. 32)

Following the 9/11 events, the Resolution of 12 September and later the Resolution 1373 of 28 September of the Security Council, characterize these events as constituting a “threat to international peace and security”, opening the way to the application of collective measures under Chapter VII of the UN Charter (Articles 41 and 42). The Resolution 1368 condemns the horrifying terrorist attacks that happened in the United States. The Resolution 1373 establishes a framework for effective international cooperation against terrorism and requests States to criminalize and prosecute acts of terrorism as well as to prevent the financing of terrorism. This Resolution is considered as a landmark in the Security Council’s history due to its broad scope and legislative nature. It is the first time that the Security Council obliged States to make wide-ranging changes to their national legislation. (UNODC, 2009, p. 31)

In terms of the international sanctions regime, the following Resolutions were adopted: 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). The responsibility for the implementation of the sanctions measures rests with the Member States and the effective implementation is mandatory. (UNODC, 2009, p. 32)

The 1267 Resolution (1999) established the so-called “Consolidated List” that is regularly updated. The Member States should take the following actions regarding the individuals or entities included in this List:

• Freeze immediately the funds or other financial contributions or resources of the included in the list individuals or entities (assets freeze);
• Prevent the entry into or transit through their territories (travel ban); and
• Prevent the direct or indirect supply, sale or transfer from their territories or by their nationals outside their territories of arms and related material of all types, spare parts and technical advice, assistance or training related to military activities (arms embargo). (UNODC, 2009, p. 32) (UNHCR, 2008, p. 64)

An individual or entity can be included in the Consolidated List after a proposal of Member States. The inclusion in the list does not depend on a criminal conviction. The proceedings of listing are rather administrative. A statement of case must be detailed in terms of the justification for listing, including the following:

• Specific findings demonstrating the association or alleged activities;
• The nature of the supporting evidence (such as judicial, media, etc);
• Supporting documents that can be supplied;
• Information about any connection with currently listed individual or entity.

The 1267 Committee would then consider the designation and add the individual or entity to the List. In case of an update of the List, all Member States are informed by the United Nations Secretariat. (UNODC, 2009, p. 33)

Nonetheless, an individual or entity included in the List can be delisted, meaning the removal of the name of this individual or entity from the above-mentioned Consolidated List. The process of delisting has been subject to changes due to the initial lack of ability of petitioners to challenge their inclusion in the List. By the Resolution 1730 (2006), the focal point process was established by the Security Council, enabling the submission of delisting requests to a focal point established within the Secretariat’s Security Council Subsidiary Organs Branch. A request for delisting may be submitted by any individual, group or entity included in the Consolidated List. The petition can be submitted either through the focal-point process or through the State of their residence or citizenship. A justification for the delisting request should be submitted with the petition. The individual or entity should provide relevant information and/or ask for support for the delisting process. The Committee that determines the removal of names from the List may consider the following points:

• Whether the inclusion of the petitioner’s name is the List resulted from a mistake of identity; or
• Whether the individual or entity no longer meets the criteria of the relevant Resolutions (for example, the individual is not alive or the entity is no longer associated with another entity included in the List).

The Committee can decide to remove the name of the individual or entity from the Consolidated List by consensus. The Committee also examines requests from States concerning exemptions to assets freeze under Resolution 1452 (2002) and travel ban under Resolution 1822 (2008). If a State wants to release frozen assets in order to pay some expenses of the individual or entity concerned (such as medicines or legal services), it may do so. However, the State should inform the 1267 Committee and the latter should not object within 3 days. (UNODC, 2009, pp. 33-34)

Conclusion

Terrorism is a weapon against global order. For more than two centuries, those who have fought the status quo, whether political, social or structural, have found terrorism an attractive tool. Not rarely, it achieves terrorist’s objectives. In an age of nuclear weapons and weapons of mass destruction, the threat posed by terrorists can only grow. For that reason, global legal order should be strengthened in order to prevent terrorists from carrying out their deeds. The United Nations could contribute to the fight against global terrorism by continuing to call for high standards of counter-terrorism capacity and by helping States meet those standards.

References

Bodansky, Y. (2001). Bin Laden: The Man Who Declared War on America. New York: Prima Publishing.

CNN, C. N. (2001). September 11: Chronology of Terror. Available here.

Hirschkorn, P. (2003). New York Reduces 9/11 Death Toll by 40. Available here.

States, N. C. (2004). The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States. First ed. New York: Norton, W.W. & Company.

UNHCR. (2008). Human Rights, Terrorism and Counter-terrorism. United Nations.

UNODC, U. N. (2009). International Law Aspects of Counter-Terrorism. United Nations.

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