This article was authored by Fionnuala Ní Aoláin
Last month, the United Nations Security Council adopted Resolution 2482, which addresses the relationship between organized crime and counter-terrorism. While the resolution was being drafted, as Special Rapporteur on Counter-Terrorism and Human Rights, I articulated some of my overarching concerns about the resolution and the precedent of linking organized crime and counter-terrorism in a symbiotic regulatory framework. Now that the resolution is publicly available, we can assess its novelty, evaluate the extent to which the resolution includes meaningful references to human rights, and examine whether the resolution goes beyond existing treaty frameworks and language in producing new pathways to legal obligations for States.
The Preamble (consisting of 19 paragraphs) to the resolution is broad and expansive in its articulation of the intersection of terrorism and organized crime.
Expressing its concern that terrorists can benefit from organized crime, whether domestic or transnational, as a source of financing or logistical support, recognizing that the nature and scope of the linkages between terrorism and organized crime, whether domestic or transnational, vary by context, and emphasizing the need to coordinate efforts at the local, national, subregional, regional, and international levels to respond to this challenge, in accordance with international law, including by promoting international legal cooperation, where relevant.
Acknowledging, in this regard, that terrorists can benefit from organized crime, whether domestic or transnational, such as the trafficking in arms, drugs, artefacts, cultural property and trafficking in persons, as well as the illicit trade in natural resources including gold and other precious metals and stones, minerals, charcoal and oil, illicit trafficking in wildlife and other crimes that affect the environment, as well as from the abuse of legitimate commercial enterprise, non-profit organizations, donations, crowdfunding and proceeds of criminal activity, including but not limited to kidnapping for ransom, extortion a d bank robbery, as well as from transnational organized crime at sea …
The Preamble describes a landscape of intersection between terrorism and organized crime, which includes reference to the relevant treaty law on organized crime (the U.N. Convention against Transnational Organized Crime) and a firm affirmation of the sovereignty, territorial integrity and political independence of States, which gives all States the primary responsibility for countering terrorism, violent extremism and organized crime. This also clearly nods to the reality that there is no agreed international law definition of terrorism, violent extremism or organized crime. As a result, States get to define these terms as they choose (broadly) at the domestic level, with no transparent oversight as to whether those definitions comport with their international law treaty obligations, particularly in the human rights arena.
Various organs of U.N. and international enforcement, oversight and norm-creation bodies are mentioned in the preamble to this resolution, including the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, the International Tracing Instrument, UNODC (OP4), UN Commission on Crime Prevention and Criminal Justice (PP2), and UN Commission on Narcotic Drugs (PP2), UNCTED (OP22 & 23), the Financial Action Task Force (FATF) and its Global Network of FATF-style regional bodies (OP 3 & 9), as well as the Global Counterterrorism Forum (GCTF)(PP19).
However, not a single human rights oversight body, and the specific normative standards of such bodies, is mentioned in the text. This fits a general pattern in Security Council counter-terrorism resolutions, whereby counter-terrorism bodies within and outside of the U.N. system get mentioned as entities and normative sources of law to which States are encouraged to pay attention to and enforce. Meanwhile, human rights bodies or other relevant international law entities — whether the Office of the High Commissioner for Human Rights, the Office of the Special Rapporteur or the International Criminal Court — are not equally exhorted, with the obvious message that the oversight, review and obligation of those bodies count for less than the compendium of counter-terrorism entities (some with clearly less legitimate basis in international law and practice).
The resolution’s preamble makes a welcome reference to human rights and international law, specifically that
“any measures taken to counter-terrorism must comply with [State] obligations under international law, international human rights law.”
In this regard, the preamble also acknowledges the link between rule of law deficits and cycles of radicalization. However, despite this welcome paragraph among 19 others in the preamble, there is a notable absence of explicit, detailed and meaningful references to obligations under international human rights law where the text and the measures being supported would clearly call for such precision.
In total the phrase “human rights” appears four times in a resolution with far-reaching implications for the protection and promotion of human rights domestically if States implemented the recommendations. The absence of sustained integration of human rights is exacerbated by distinct, detailed and highly technical references to “Recommendations” of non-treaty based entities, explicit calls to States to review domestic legislation and make unambiguously defined changes to domestic criminal law (with no mention of ensuring a rights-balancing or review exercise is carried out in parallel), calls to States to strengthen border management, to establish mechanisms at the domestic level to enable broad international cooperation across multiple spheres of regulation, and much more.
The point is clear, Security Council resolutions can be explicit and detailed on all the recommendations, sources, technical advice, and expert capacity that lie with U.N. counter-terrorism entities and their progeny, but they are entirely silent on the necessary detail required to protect human rights adequately when such measures are adopted, despite a plethora of treaty sources, jurisprudence, soft law and established U.N. entities to include in the conversation. I have previously outlined (A/73/361), that the silence is not an oversight but a sustained marginalization of meaningful human rights integration in the nuts and bolts of Security Council work in the counter-terrorism arena.
Where human rights are mentioned, the phrase is used narrowly e.g. human rights obligations are mentioned in OP15(c) with respect to the implementation of Airline Passenger Information (API) and Passenger Name Record (PNR) obligations (as also mandated by UNSCR 2396); and OP 20 with regard to preventing radicalization in prisons. In each case, what is given is a generic clause highlighting the importance of compliance of counter-terrorism measures with international law obligations, in particular human rights law, humanitarian law and refugee law. But a generic reference to human rights in these contexts does not illuminate the specific human rights in question (privacy, family life, non-refoulement, due process). If we can assume (as the resolution does) that States need explicit detail in order to understand their counter-terrorism obligations, it should equally be assumed that understanding their precise human rights obligations will not happen by osmosis – unless those obligations and implications are equally and explicitly spelled out.
In my view as Special Rapporteur, providing more clarity as to the scope of human rights obligations, including through the inclusion of human rights benchmarking and related assessment, as well as oversight tools, would represent a considerable improvement and would facilitate compliance with relevant standards in the context of domestic implementation processes. It is also telling that the resolution concludes (Operative Paragraph (OP) 25) by requesting that the U.N. Secretary-General submit a report within 12 months to the Security Council by UNOCT and UNODC and references that “relevant entities to provide information.” Not a single U.N. human rights entity is considered a “relevant” entity worthy of explicit mention, despite the obvious and significant human rights implications of the desired actions outlined in the resolution.
Positively, it is welcome to see the inclusion of a humanitarian exemption clause (similar to OP 24 of UNSCR 2462) in OP 16 of the resolution. I welcome this amendment and consider the inclusion of an exemption clause in a counter-terrorism resolution of the Security Council a significant step forward. However, similar to other humanitarian actors, I remain concerned about the limited scope of the exemption clause as it only applies to “exclusively humanitarian activities” that are “carried out in accordance with international humanitarian law.” The clause would not encompass a number of activities conducted by humanitarian organizations, including activities that certain States may not consider “exclusively humanitarian” in nature, such as international humanitarian law training to armed groups as well as other legitimate humanitarian activities not governed by the law of armed conflict.
As Special Rapporteur, I have advocated for the use of precise and defined terminology in the counter-terrorism context, consistent with the principles of legality and proportionality. The absence of such precision creates conditions under which counter-terrorism norms can be abused domestically, undermining human rights protections for individuals and groups. It seems to me that the scope of this resolution is a broad one, also due to the consistent introduction of the qualifier “whether domestic or transnational” after the term “organized crime.” In plain reading this essential definitional foundation to the resolution implies that its scope goes beyond that of the Transnational Organized Crime Convention.
While the Convention is repeatedly referenced in the text, it is apparent on close reading that the resolution does not seem to consistently adopt the terminology used in the Convention or provide definitions for terms such as “serious criminal offence” or “organized criminal network/ group.” The lack of definition and the gaps with the Organized Crime Convention may have serious ramifications if the recommendations are implemented domestically as proposed. The absence of a list of definitions in this resolution gives effective carte blanche to States to define these terms as they will, but on the basis of compliance with a Security Council resolution – thus legitimizing and expanding counter-terrorism mandates domestically in ways that simply do not accord with the rule of law or human rights protections in practice.
It remains somewhat obvious to say that terrorism and organized crime are subject to different legal regimes. And, in general, as I have pointed out elsewhere, terrorism regulation in many States constitutes a de facto exceptional legal regime, which is growing larger and more ambitious by the year. Blending in an opaque opening to the inclusion of “organized crime” in the counter-terrorism arena will likely result in the expansion of exceptionality at the national level.
The move also foregoes the basic assumption that all else being equal, the ordinary law of States should be the preferred and natural point of regulation for both organized crime and terrorism. Furthermore, I remain concerned (A/73/361, paras. 46-49) that this resolution continues a pattern of ill-conceived blending of different and distinct legal regimes, specifically a failure to separate out and address the law that applies to armed conflict and the international legal regime that has developed post-9/11 to address terrorism. Thus, references to “armed and terrorist groups” in the resolution raise concerns about blending terrorism and armed conflict and thereby undermining the protective regime established under international humanitarian law in ways that undermine the usefulness of these legal regimes to do the work they were intended to do.
In conclusion, while this is not a Chapter VII resolution under the UN Charter activating a range of powers and resources for the Security Council and concurrent obligations for States, we should not underestimate its influence. Moreover, the creep of conflating armed conflict, terrorism and organized crime does not lend legal clarity to complex legal and political challenges. In the long run, it may, in fact, make solving these problems using the law far more difficult.
Image: The Security Council unanimously adopts resolution 2482 calling on Member States to strengthen a global response to linkages between international terrorism and organized crime. UN Photo/Eskinder Debebe
This article originally appeared on https://www.justsecurity.org/65777/a-post-mortem-on-un-security-council-resolution-2482-on-organized-crime-and-counter-terrorism