I.P.O. RESEARCH PAPERS
Dr. Hans Koechler
Professor and Chairman, Dept. of
Philosophy, University of Innsbruck/Austria
Ever since its foundation, the predicament of the United Nations Organization has been that the enforcement of the general principles of international law as set out in the Charter has only been possible when and to the extent by which the interests of the Security Council’s permanent members allowed such measures to be undertaken. Obviously, this was the main reason for the de facto paralysis of the Security Council during the Cold War, a period which was characterized by the bipolar power structure resulting from the rivalry between the United States and the Soviet Union.
The obstacles to consistent and efficient mechanisms of collective security are becoming even more serious in the present era of unipolarity – when the international community is faced with the rise of global terrorism in the course of the tragic events of Sept. 11, 2001. At the dawn of the 21st century, the issue of terrorism constitutes the most serious challenge to the world organization’s supremacy in matters of enforcing common legal principles, i.e. as guarantor of the international rule of law vis-à-vis all nations, small or big, weak or powerful. The way the United Nations deals with this challenge politically – and the legal and eventually military methods the organization uses, or authorizes, in its collective action against terrorism on the basis of Chapter VII of the Charter – will define its future role in the global system. Indeed, the world organization will have to walk a tightrope trying to balance the power politics of sovereign nation-states – particularly those that enjoy the status of permanent members in the Security Council – against the requirements of collective action as set out in the Charter.
Under the conditions of the present unipolar world order, the punctum saliens of the United Nations' credibility will be how the organization now facing the global terrorist challenge, will enforce the rule of law in a universal and cohesive manner so that the principle of the sovereign equality of states, including the principle of non-interference, will be upheld and all actors in the international arena will be subjected to the same standards of legitimacy of their political actions vis-à-vis one another. If the organization succeeds in this mission, it will then be possible to preserve world peace and “to save succeeding generations from the scourge of war,” which is the goal solemnly proclaimed in the Charter’s Preamble. This goal has gained new significance under the circumstances of what the most powerful member state calls the "global war on terror."
This challenge, however, cannot be met if one has to rely solely on instruments and legal procedures created on the basis of the power balance of 1945, i.e. by means of a Charter reflecting the necessities of an earlier era. The United Nations Organization can only accomplish its mission if it adapts itself to the newly emerging global situation through a genuine democratic reform – along the lines neither of bipolarity nor of unipolarity, but of multipolarity – and by establishing a comprehensive and consistent system of international humanitarian law in which norms regulating the definition and punishment of the crime of terrorism will form an integral part.
Neither the unipolar power structure of the present world order nor the terrorist threat to peace and stability on the national or international level must be accepted as fait accompli. As in 1945, the United Nations Organization, at the beginning of the Third Millennium, should unite the peoples of the globe in the search for a comprehensive system of norms that encompasses modern state practice and is, at the same time, compatible with the requirements for a peaceful international order in which no state, group, or individual will be exempt from the application of the law. This is the essence of the international rule of law. In such a system, there can be no domaine réservé of international action with impunity, neither for a state nor for a movement acting against a state, whether it does so with the support of a third state or not. One state’s terrorist cannot be the other state’s freedom fighter and vice-versa – no international actor, not even a permanent member of the Security Council, can be above the law. Even if it may sound highly idealistic or utopian in the present state of international affairs, in the eyes of the citizens of the world, the very legitimacy of the world organization will depend on a consistent and persistent commitment to the rule of law. Such a commitment is the essence of the policy of collective security as laid out in Chapter VII of the UN Charter.
The doctrine of collective security is the very foundation upon which the United Nations Organization is built. It is based on the joint commitment of member states to the international rule of law. The respective provisions of Chapter VII of the UN Charter have been the cornerstones of the multilateral security system that was envisaged by the sponsoring governments of the United Nations in 1945. That system has been considered essential for the preservation of peace ever since the end of World War II and has been defined as one of the basic elements of modern international law because it incorporates the principles of sovereign equality (Art. 2  UN Charter) and the non-use of force in relations between states (Art. 2 ). It was meant to ensure, once and for all, that the jus ad bellum, which previously (i.e. in the period prior to World War I) had been considered a prerogative of the sovereign state, would never again be incorporated into the system of rules governing international relations.
The United Nations Charter is based on the principles of collective security and the functioning of the organization depends upon the co-operation among sovereign nation-states, first and foremost the permanent members of the Security Council. According to Art. 24 of the Charter, that body bears the primary responsibility for the maintenance of international peace and security.
Although terrorism (including transborder terrorism) is not a new phenomenon, large-scale international terrorism, in the context of highly complex and increasingly global networks, constitutes an entirely new challenge to the system of collective security as represented by the United Nations Organization. By its very nature, transborder terrorism cannot exclusively be dealt with within the framework of an international order defined by the nation-state. Naturally, effective strategies cannot be developed by states in isolation from each other. Except in cases of state terrorism, where specific state responsibility can be established, governmental authorities cannot automatically be held accountable for terrorist acts originating from their territory. Governments are often not aware of their state's territory being used as "staging ground" for terrorist acts in other countries and on other continents.
To a certain extent, the new brand of international terrorism referred to above (in the form of regional and transcontinental networks) is also a phenomenon of globalization. This kind of terrorism not only exploits the global availability of information infrastructure for its own logistical purposes, but also makes use of it for political mobilization.
If the global anti-terrorist struggle (including the development of an integrated political and security strategy to combat terrorism) is left to the nation-states alone, the world will be confronted with the real danger of uncoordinated action by a multitude of sovereign actors. In such a scenario, each actor will define its strategies on the basis of an essentially unilateral threat assessment and may eventually carry out preemptive measures according to that threat assessment. This is a recipe for global anarchy. In this regard, the United States' new security doctrine, proclaimed in 2002, is an ominous sign of things to come.
The moral dilemma of terrorism in the context of international power politics has been aptly described by Chalmers Johnson: "Terrorism by definition strikes at the innocent in order to draw attention to the sins of the invulnerable." An entirely new approach is needed by the international community in order to tackle a challenge to the global order of peace that, by its very definition and strategy, transcends the confines of the nation-state and cannot be defined in the traditional framework of conflicts between nation-states.
Efforts towards a consistent and, for that matter, efficient counter-terrorist strategy on the global level should include, inter alia, the following measures:
In view of the principles outlined above, a basic obstacle to a consistent and sustainable counter-terrorist strategy lies in the denial of reality by the political élites of influential countries, particularly permanent members of the UN Security Council, as regards the causes of terrorism. Many decision-makers are still determined to use the labeling of acts of violence – or entire movements linked to such acts – as "terrorist" as a political tool; this kind of classification often serves narrowly-defined national interests as evidenced, inter alia, by the "list of foreign terrorist organizations" established by the United States administration.
In spite of the tragedy of September 11, 2001 and atrocities in Europe and other parts of the world that followed it, governments have still not learned the lessons of history; they stubbornly refuse to deal with acts of politically motivated violence – the illegality and immorality of which is defined by the means, not necessarily by the causes – in a consistent manner. Through their parochial approach of refusing to disassociate a political cause from the application of the means, those governments have undermined a joint and cohesive counter-terrorist strategy. By this attitude, they have sacrificed the bonum commune (in the sense of effective international prevention of terrorist acts) for the sake of power politics, thus undermining global solidarity vis-à-vis the terrorist threat. In many instances, the classification of a group or movement whether as "terrorist" or as a genuine movement of national liberation, depends upon the national interests of the country that undertakes that classification.
The conflicting approaches towards the disputes in or around Palestine, Chechnya, and the Philippines to mention a few, are a vivid illustration of this policy of double standards which, in spite of statements to the contrary, is still a characteristic element of international relations in the framework of the United Nations Security Council. A consistent strategy to combat international terrorism on the basis of unified criteria will only be possible if the international community agrees on a comprehensive convention on terrorism.
In order to make the above-described strategy credible (in terms of applying a unified system of norms) and efficient at the same time, the phenomenon of terrorism has to be dealt with at all levels: legal, political, social, economic and cultural. The approach has to be inclusive, i.e. it must not artificially separate the previously mentioned aspects of the terrorist threat.
As far as the legal level is concerned, international criminal jurisdiction should be established for the crime of terrorism in addition to strengthening the procedures of domestic jurisdiction. Generally, terrorism should be situated within the domain of universal jurisdiction. The states parties to the Rome Statute should consider incorporating the prosecution of terrorist acts into the jurisdiction of the International Criminal Court (ICC) – a step which is not necessarily detrimental to national sovereignty insofar as the ICC's jurisdiction is defined on the basis of complementarity with national jurisdiction. All United Nations member states that are seriously committed to combating terrorism should consider joining the International Criminal Court to document their unequivocal commitment to the international rule of law and to the principle of personal accountability (without which any counter-terrorist strategy lacks efficiency). By this step, the states having proclaimed a "global war on terror" would be particularly able to demonstrate the credibility of their efforts.
As regards the political, social and economic levels, the root causes of terrorism – whether those lie in injustice, oppression, foreign occupation, colonial subjugation, denial of basic human rights – have to be clearly identified before they can be eradicated, i.e. before a meaningful counter-terrorist strategy can be developed. Turning a blind eye to the motives for terrorist acts which are, whether directly or indirectly, related to these causes, amounts to dangerous self-betrayal.
Dealing with the symptoms can only be seen as an emergency measure, but it will never be sufficient to prevent terrorist acts in the future. If one addresses the symptoms alone, the "war on terrorism" will never end. It has been proven in the course of the Middle East confrontation as well as through the conflicts in South-East Asia that a mere security approach will inevitably fail. A comprehensive strategy to combat terrorism must go beyond mere police, military, or intelligence measures, even though they may be effective in particular cases and under specific circumstances. Equal importance has to be given to the search for the motives behind terrorist acts. Such an effort will enable a state to specifically address the causes of grievances and frustrations that may drive people to engage in terrorist violence which by the perpetrators as well as by the sympathizing local population is often seen as legitimate resistance and part of a strategy of national liberation.
Furthermore, as regards the cultural level, the Western paradigm of the "clash of civilizations" must not become a self-fulfilling prophecy. Comprehensive efforts will have to be undertaken to promote a dialogue especially between the Western and Muslim worlds to prevent the hardening of stereotypes that in turn may trigger more violent action. The escalation of the crisis between the Arab and Muslim world on the one hand and the West on the other in the course of the events of 2003 is an ominous sign of things to come – unless enlightened people on both sides are courageous enough to identify the root causes of the increasing cultural and political alienation between the two communities.
Unlike individual states acting through unilateral measures that are implemented according to narrow national interests, the United Nations Organization can play a genuine role in combating international terrorism and must assume this responsibility in terms of its overall responsibility for collective security. It is incumbent upon the United Nations, not individual member states, to determine the "rules of the game" for consistent and efficient multilateral action against terrorism. If one considers the far-reaching implications for global security and stability, this is indeed a challenging task.
Should the organization fail in that mission, it will be gradually sidelined and marginalized and may finally be declared obsolete. The predicament that befell the League of Nations in the period prior to World War II has been repeatedly referred to in this regard.
However, the United Nations must not be "hijacked" by powerful nation-states for their own anti-terrorist agenda either. The world organization must not be seen as a tool for the execution of unilateral policies providing a "multilateral cover" for the actions of the most powerful member state(s) in the Security Council. If this would be allowed to happen, the legitimacy of collective action against terrorism would be seriously undermined. As evidenced in the role played by the United Nations Security Council in the Gulf war of 1991, this danger is a reality.
The doctrine of collective security, as set out in Chapter VII of the UN Charter, will have to be reasserted in regard to its basic principle of multilateral action and, at the same time, reevaluated and adapted to the new circumstances referred to above:
In order to avoid arbitrariness and international anarchy, unified legal standards in terms of general international as well as criminal law must be applied in dealing with the phenomenon of terrorism.
In the future, all matters of personal criminal responsibility related to acts of international terrorism should be dealt with in the framework of universal jurisdiction and, whenever possible, in subordination to a permanent institution of international criminal justice such as the ICC (which operates on the basis of complementarity with national jurisdiction). Instead of "military commissions" established on the basis of domestic jurisdiction (such as the Guantanamo "courts"), only institutions that are truly independent – i.e. operate on the basis of a genuine separation of powers – should prosecute international terrorist acts. In view of its complementary jurisdiction with national courts, the International Criminal Court, although legally not being a United Nations organ, should be accepted as arbiter by the member states of the United Nations in all matters related to the prosecution of crimes of international terrorism. The Security Council should constructively cooperate with this institution, not block it in favour of the parochial interests of one or more permanent members. Similarly, the judiciaries of individual member states should coordinate their prosecutorial activities with the ICC on the basis of complementarity.
Finally, as precondition for a morally credible and politically consistent anti-terrorist policy (one that integrates police, intelligence and military measures into a comprehensive political-legal framework), the United Nations Organization must reinvigorate its almost abandoned efforts towards the establishment of a just global order according to the resolution adopted by the UN General Assembly in 1974 on the establishment of a "New International Economic Order." Unless the member states, particularly those of the industrialized world, address the issue of poverty, the social injustice and economic imbalance between the developing countries and the rest of the world, the grievances and frustrations of large sectors of the world's population will never end and will continue to fuel highly destructive political emotions that, in turn, may lead to desperate acts of violence. Although it is true that understanding the causes of terrorist violence is not equivalent to condoning such acts of violence, which are intrinsically immoral and inherently illegal, a credible counter-terrorist strategy cannot satisfy itself with moral condemnation and punitive measures alone. A reactive approach has to be complemented by a proactive strategy. Turning a blind eye to the social and economic causes of terrorism has been one of the main reasons why the international community has been utterly incapable of containing the global spread of terrorism so far.
In essence, a policy oriented towards global justice, not global revenge, is the main weapon in the joint struggle against international terrorism. The new forms of transnational violence that are commonly described as "terrorism" are putting the modern state system of collective security to its most severe test since the establishment of the United Nations after the end of World War II. In order to be able to pass this test, that system must be embedded in a comprehensive network of social as well as economic security.
The best form of preemption is not a strategy for a "global war on terror" implemented through a series of "preventive wars" (such as the ones waged against Afghanistan and Iraq), which by definition can never be won, but a comprehensive strategy of global economic co-operation based on the principles of fairness and equal opportunities for all, combined with sustained efforts towards civilizational dialogue, and political partnership among all regions of the globe on the basis of the goals enunciated in the Preamble to the United Nations Charter.