Guest Post: What is happening here? Notes of caution on the UNSC resolution on facilitating travel of “foreign terrorist fighters”

By Jens Iverson, Leiden University [Note, this is an expanded version of a brief post on the Leiden Law Blog.  Many thanks to Dov for allowing a fuller post on his excellent blog.]

 On 24 September 2014, the UN Security Council passed Resolution 2178 under Chapter VII regarding foreign terrorist fighters.  The UN Security Council is making it obligatory for UN member states to change their domestic criminal law.  The conduct criminalized in the draft text includes attempts to travel abroad “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”, gathering funds to assist such travel, or other facilitation of such travel. At least three aspects of such a resolution are noteworthy.

First, one might note that the Security Council has again proven itself to be rather innovative, to put it positively, or imperious, to put it more negatively.  When creating the Security Council’s extensive powers, it is unclear that the framers of the U.N. Charter had in mind such actions as commanding the production of domestic law or, for that matter, the creation of ad hoc tribunals.  These innovations are much more frequent since the end of the Cold War.  It will be interesting to see if they continue.  The commandment to states to issue domestic criminal legislation is remarkable in itself, although not unprecedented – see for example UNSC resolution 1373 (2001), which mandated that those financing, planning, preparing or perpetrating terrorist acts are “brought to justice.”  There is certainly a strong case to be made that certain forms of terrorism are threats to international peace and security, but it is also worth pointing out that if there is an outer limit of legitimate (non-ultra vires) Security Council action, this action is near that outer limit.  Is this the creation of international Criminal Law in domestic fora, not by custom or treaty but by an organ of the UN?  What legislation might be mandated next?  Might not something along the lines of the anti-commandeering doctrine in US constitutional law apply?

Second, the core criminal conduct (terrorism)  is rather separated from the conduct that the Security Council would criminalize.  It is not addressing an act of terrorism (itself variously defined in international law), but rather, at the outermost, facilitating the travel of others (in a non-monetary and perhaps non-essential manner) to receive training that could potentially used to commit an unspecified act of terrorism sometime in the future.  It is hard to imagine this type of inchoate and/or accessorial liability for core criminal conduct other than terrorism.  One might argue that nuclear proliferation poses a greater threat to international peace and security than any arbitrary act of terrorism, but it would be hard to imagine a specific and binding Security Council commandment for all states to criminalize helping someone book a ticket to travel abroad to receive training that could be used to proliferate nuclear weapons technology sometime in the future.

Third, the mens rea appropriate for the conduct is somewhat unclear from the text.  Take “the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the  providing or receiving of terrorist training[.]”  So the “facilitation” must be “wilful”, but what exactly must be willed?  The travel?  The travel for the purpose of receiving certain training?  The travel for the purpose of receiving training which is itself undertaken for the purpose of committing acts which are terrorist acts because of the intent behind those acts?  Is there a specific intent requirement?  What is it?  How might this be implemented by states whose human rights record is less than stellar?

Despite the generally critical tone of this post, I am sympathetic to this effort.  The groups listed in the resolution: ISIL, the Al-Nusrah Front, “and other cells, affiliates, splinter groups or derivatives of Al-Qaida” are of legitimate concern to the Security Council, and it is surely better to address the problem of terrorist recruitment early on through good police work rather than, say, illegal invasion and botched occupation.  Facilitating travel can be in furtherance of a criminal conspiracy.  But I also think a note of caution is in order, given the proposed mandatory expansion of the power of the state over travel and association, and the history of civil liberties violations in the area of counter-terrorism.  There has been, in the Anglo-American tradition at least, a traditional push-back against the European tradition of prosecuting mere membership in an organization deemed criminal by the state.  For conspiracy, for example, an agreement to achieve an illegal goal and an overt act in furtherance of that goal are traditionally required.  The German Penal Code, in contrast, criminalizes such conduct such as membership in any group formed to commit crime, an armed group formed for any purpose, or even a banned political party.  Here, the UNSC is criminalizing conduct that does not demonstrate membership in a criminal group, nor an agreement to enter into a conspiracy, but rather criminalizing the facilitation of another’s travel to perhaps become a member in a criminal group, with attendant training.

The framing of the issues around the “foreign terrorist fighter” is purposefully frightening, even if the individual is not in fact foreign and the status of “terrorist” or “fighter” is often contestable or premature.  Just ask the Syrian, Turkish, Russian, Ukrainian, and U.S. governments who is a foreign terrorist fighter, and the problem of legal certainty in this area becomes clear.  Expansion of government power in a situation of legal vagueness and fear is a recipe for abuse.  The UN Security Council should act to manage the problem of transnational terrorism, but it should also do what it can to limit the damage to civil liberties that counter-terrorism efforts so often cause.