New York, 13 March 2008 – The UN General Assembly’s Ad Hoc Committee (AHC) on Measures to Eliminate International Terrorism concluded its 12th Session on 6 March 2008 without reaching agreement on the draft Comprehensive Convention on International Terrorism (CCIT). Working from the 2002 version of a draft text and on the premise that “nothing is agreed until everything is agreed,” Member States struggled with questions on the scope of and exceptions to the definition of terrorism.

The AHC concluded its Session by recommending that the GA’s Sixth (Legal) Committee establish a Working Group on the CCIT in the 63rd Session, so as to continue negotiations “with a view to finalizing the draft.” (Click here to read the agreed recommendation.) AHC Chairman Rohan Perera of Sri Lanka noted that concluding the CCIT negotiations is a vital aspect of the UN’s Global Counter-Terrorism Strategy review scheduled for September 2008.

The AHC also adopted a report of the Session that details the importance of continuing to work towards a finalized draft of the CCIT and reiterates the need to convene a high-level conference to address myriad issues concerning terrorism.

The Coordinator of the CCIT drafting process, Maria Telalian of the Permanent Mission of Greece to the UN, made a statement on the results of the bilateral contacts she had conducted during the Session. She indicated that despite some ongoing differences of opinion, more and more delegations view the proposed elements in the draft as a “viable and legally sound” basis for the CCIT.

Origins of the CCIT

International terrorism has long been the subject of General Assembly discussion, originally falling under the auspices of the General Assembly’s 1972 Ad Hoc Committee on International Terrorism. The 1994 Declaration on Measures to Eliminate International Terrorism recognized the role that might be played by the UN to “eliminate international terrorism in all its forms and manifestations.” Resolution 51/210 of 1996 went a step further by creating an Ad Hoc Committee “to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.” Also in 1996, India presented a draft of a comprehensive convention on international terrorism (CCIT). The Ad Hoc Committee and a Working Group of the Sixth Committee subsequently worked on separate but related aspects of the draft negotiations. The draft has been the subject of discussion, debate and additional texts since its production. Most recently, the World Summit outcomes in 2005 created new momentum for the ongoing CCIT negotiations.

In addition to the CCIT negotiations, the Ad Hoc Committee also is tasked with convening a high-level conference — proposed by Egypt in a letter to the Secretary-General in 2005 – for an overall response to terrorism.

Negotiating the CCIT

The CCIT seeks to serve as a binding and enforceable instrument of international criminal law. In an initial attempt to define terrorism, the draft states that it is an offense to:

Unlawfully and intentionally cause death or serious bodily injury;

Unlawfully and intentionally cause serious damage to public or private property or damage such property as to result, or likely to result, in major economic loss; and

Purposefully intimidate or population or compel a government or an international organization to act, or abstain from acting.

But defining terrorism immediately became a contentious and divisive task. The most problematic issues may be summarized as:

Whether the definition of terrorism should include State-sponsored terrorism and acts of State terrorism. Some delegations (including Cuba, Iraq, Iran, Lebanon, Libya, Pakistan, Syria and Sudan) previously have expressed the view that State, and State-sponsored, terrorism should be included in the definition. Other delegations have countered that State and State-sponsored terrorism already are subject to international conventions (including the Prohibition of the Use of Force under Article 2(4) of the UN Charter);

Whether the activities of armed forces should fall under the scope of the Convention. Some delegations (including the EU states, Canada, China and Japan) wish to exclude military activities from the Convention, arguing that military activity is already subject to international conventions and treaties;

How to resolve use of the term “terrorism” to ensure that it is not left open to unchecked politicization. Currently, the draft refers to terrorist “offences,” but some Member States are concerned that “terrorism” also should be included in the draft, so as to differentiate it from terrorist “offences” and to endow it with a legal definition.

The legitimacy of armed struggle against foreign occupation, aggression or colonialism. Some delegations consider such armed struggle to be aimed self-determination and believe that the Convention should in no way hinder any people’s legitimate right to self-determination, whilst others argue that the Convention should identify any act that falls beyond the defined parameters of armed conflict as terrorism.

How to situate a “comprehensive convention” in an international system that already includes multiple conventions, while ensuring that no terrorist activity escapes through legal loopholes. No state wishes to be subject to a “double regime” of anti-terrorism legislation. This is especially problematic because not all States are subject to all conventions, but no State wishes to have to duplicate their counterterrorism efforts.

The 2005 appointment of a draft coordinator (Maria Telalian) – a new permanent position to oversee consultations – was taken as an indication that the consultations would receive renewed attention and expediency. In August 2005 Telalian proposed preamble text to the Convention in an effort to negotiate an acceptable starting point to the CCIT. However, negotiations within the AHC and the Sixth Committee resulted only in a small number of delegations indicating partial support for elements of the proposal, and no single delegation offered its unqualified support. An alternative proposal was circulated by the Sixth Committee’s Working Group later in the year but was also met with reservations from Member States.

In February 2007, Telalian announced that the outstanding differences preventing agreement on the Convention mainly concerned the scope of application of the Convention and the related issue of exclusions. Following a series of bi-lateral contact meetings between Coordinator Telalian and Member States she circulated a statement that:

The Convention is not intended to rewrite existing international humanitarian law, but to interact with existing rules and instruments;

Stronger language is needed to emphasize that no impunity is intended by Article 18;

Military activities of a state, undertaken “in the exercise of their official duties”, are not subject to this Convention;

International humanitarian law (IHL) is unaffected by the Convention;

This instrument does not approve of the recourse to force “by anybody, in whatever way”; and

Parties to the Convention are responsible for implementing it in the context of other laws, and the relationship between the various regimes will have to be determined by the circumstances of each individual case.

Latest AHC Proceedings (February-March 2008)

In his opening statement, Chairman Perera noted that the work conducted so far towards negotiating the CCIT had been substantial. He encouraged a continuation of the open dialogue, cooperation and goodwill that Member States have shown toward the process.

In the meetings held on 25 February and 6 March, all delegates who took the floor expressed their commitment to continuing the work of the draft negotiations and their condemnation of international terrorism. Additional points made by most or all speakers included:

The work towards a CCIT to date is commendable, but a conclusion to the draft is long overdue;

Despite the challenges that are currently stalling the CCIT negotiations, Member States are open to discussion to resolve them; and

A high-level conference should follow the conclusion of the CCIT.

Other Comments from Member States

The European Union called the meeting, “A new opportunity to resolve the outstanding issues on the CCIT.”

The Rio Group recognized, “it is of great importance that we all have the opportunity to share our opinions on the subject in a transparent and inclusive manner.”

Japan recognized, “it is essential to make the provisions as unambiguous as possible, in spite of the difficulties we are facing” and urged “every state to exercise utmost flexibility for an early conclusion of the negotiation on the draft Convention.”

Liechtenstein commended the work of Coordinator Telalian in facilitating “a viable basis for a compromise.” The delegate also noted that, whatever the outcome of the current proceedings, it had become clear that “what divides us are ... not insurmountable differences as far as the substance of the law is concerned, but differences of opinion and perception relating more closely to the realm of politics and the intricacies of multilateral negotiations.”

The Organization of Islamic Conference (OIC) stressed the need to resolve the outstanding issues, which include 1) the legal definition of terrorism (particularly on the distinction between terrorism and people’s struggle for self-determination and against foreign occupation), and 2) the scope of the acts covered by the draft Convention.

Israel stressed, “A comprehensive convention must reflect universal support of the basic legal – indeed, moral – principle that murder of the innocent can never be justified by the furtherance of political or ideological goals.”

Despite the positive tenor of the plenary meeting, real differences of opinion remain as to the exact nature and scope of a comprehensive Convention.

Member States have been engaged in bilateral consultations with Telalian both prior to and during the current session. In her statement at the start of the AHC Session, Coordinator Telalian expressed concern that there was “a certain reluctance to seize the moment and move ahead towards the completion of the Convention.” However, she also noted the following points of progress:

Proposed elements to draft article 18 are similar in scope and substance to the exclusionary measures already present in several counter-terrorism instruments, but seek to offer more clarity to those responsible for implementation; and

The draft Convention is not intended to rectify any perceived flaws in other fields of law, and such problems need to be addressed elsewhere. Moreover, the Convention would not supersede legal obligations where they already exist.

Following the session, Telalian stressed “the importance of political will” and implied that the opportunity to conduct negotiations may not last forever. Telalian’s closing statement can be found here.

Similarly, several Member States expressed the expectation that the draft be concluded before the end of 2008.

While the GA continues to work toward an agreed legal definition of terrorism, the UN can only use a loose working meaning for the term. A UN press briefing this week highlighted the difficulty of not having a legal definition. On 11 March, the spokesperson for the Secretary-General was asked whether the UN considered the demolition of Palestinian homes to be a "terrorist act." The spokesperson could not respond conclusively, because "the United Nations, as a body of 192 countries, has not reached a conclusion on the definition." She later was asked to describe the process by which the UN defines a "terrorist attack" and again was unable to provide a conclusive answer, stating, "As far as I know, the line is essentially civilian casualties and any attack directed against civilians."

Other Efforts to Counter Terrorism

Although the mandate to negotiate a CCIT so far has been unsuccessful, the mandate concurrently tasked to the AHC under Resolution 51/210 to elaborate international conventions for the suppression of various terrorist and terror-related activities has been more successful. Such conventions deal with subject-specific (rather than holistic) issues such as the suppression of terrorist bombings (A/RES/52/164) of 1998, the financing of terrorism (A/RES/54/109) of 2000 and nuclear terrorism (A/RES/59/290) of 2005.

The General Assembly’s passage of the UN Global Counter-Terrorism Strategy in September 2006 also was seen as a pivotal step towards countering the international terrorist threat. The Strategy aims to dissuade, deny, deter and defeat terrorism whilst maintaining a defense of human rights. The Strategy is unique insomuch as it is the first time that all Member States have agreed to a common strategic approach against terrorism. Although not the hoped-for CCIT, agreement on the Global Counter-Terrorism Strategy was expected to provide momentum for agreement on the theoretical quandaries of the Convention.

Documents

Draft Recommendation of the AHC on Measures to Eliminate International Terrorism, 6 March 2008

Coordinator’s Statement on Draft Comprehensive Convention on International Terrorism at Closing of AHC, 6 March 2008

Draft Report of the AHC on Measures to Eliminate International Terrorism, 29 February 2008

Summary of AHC Session proceedings, 25 February 2008

Coordinator’s Statement on Draft Comprehensive Convention on International Terrorism at Opening of AHC, 25 February 2008

Report of the Sixth Committee (see Agenda Item 108), 19 November 2007

Report of the Ad Hoc Committee on Measures to Eliminate International Terrorism, 1 February 2002 (includes latest working draft text)

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