The resort to law has been a marked feature of the international response to September 11 2001 (9/11) and its aftermath. While there was already an extensive body of international law addressing terrorism before then, there has been a surge of law-making internationally and regionally since that time. At the United Nations (UN) level, the completion of conventions on terrorist bombing and nuclear terrorism followed quickly upon the attacks on New York and Washington, adding these two new conventions to the 11 existing UN anti-terrorism conventions.^[5] The numbers of states parties to the terrorism conventions increased rapidly, and work on the drafting of a comprehensive anti-terrorism convention was given additional stimulus (though this process has continued to move slowly toward a conclusion, bedevilled by the difficulties of defining terrorism and solving political issues largely mired in the situation in the Middle East).^[6] Regional conventions have been adopted by the Organisation of American States and by the Council of Europe, and specialised agencies and other bodies have adopted a range of measures to minimise the risk of terrorism and to enhance efforts to identify, disrupt and bring to justice persons engaged in terrorist activities.

These instruments represent the traditional broadly-based form of international law‑making that involves participation of a large number of states in the legislative process, the absence of any obligation to join the resulting treaty regime, and an instrument containing substantive obligations that often reflect the least common denominator. However, an equally — indeed, perhaps more — important form of law‑making has come to prominence post-9/11 in relation to terrorist issues, namely the use of ‘executive’, ‘Great Power’ law-making, through the UN Security Council.

In a series of resolutions adopted under Chapter VII of the UN Charter (and thus formally binding all member states as a matter of international law), the Security Council has legislated wide-ranging obligations for states in relation to terrorism. In significant respects, these obligations extended well beyond the obligations that many states had individually or collectively accepted under existing treaties. In addition, the establishment of supervisory institutions by the Council to monitor the implementation of these measures has meant that the decisions have become much more than powerful political exhortations.

The development of this ‘legislative’ function by the Council — largely driven by the efforts of the US to use the authority of the Council to advance an energetic agenda against terrorism — is controversial for various reasons, including that it is seen as pushing a predominantly US/Western agenda and endeavouring to impose it on the rest of the world.^[7]

The adoption of new international law in the form of a treaty or other programmatic instruments does not necessarily bring with it the institutional structure to drive the implementation of obligations accepted or political undertakings given by states parties or the states which have supported the adoption of the instrument. Even if institutions are established, they may be under‑resourced or limited in their functions and powers.

However, the recent Security Council resolutions, which form the centrepiece of the Council’s response to terrorism are an exception,^[8] since each of them established a committee of the Council to monitor its implementation.

The most important of these has been the Counter-Terrorism Committee (CTC), established under the far-reaching Resolution 1373, adopted on 28 September 2001. The role of that Committee is to monitor the implementation by states of the extensive obligations imposed on member states by the Council in Resolution 1373. The Committee initially received significant resources to support its work, and has continued to benefit from such support.

Since its establishment in 2001, the Committee has been able to persuade all member states to report at least once (and many more than once) on the steps they have taken to implement Resolution 1373; these reports have been reviewed by the Committee through its sub-committees. Expert advisers assist the Committee; in its evaluation of the reports, the Committee offers comments, recommends that states obtain technical assistance to assist the implementation of their obligations, and facilitates that process; and the Committee also carries out visits to member states.

The CTC is now well-established and has entered that stage of institutional development during which a body ensures that it will continue to exist by the identification of constantly shifting or emerging new needs that it is able to fulfil. With the CTC this evolution seems well underway: in 2004 the Committee sought permission to ‘revitalise’ itself, something which involved the establishment of a substantial Counter-Terrorism Executive Directorate (CTED). That ‘revitalisation’ took place in late 2005, and it is clear that the CTC and CTED will be with us for the long-haul. The CTC’s tasks include putting pressure on states to report, analysing reasons for states’ non-reporting, carrying out technical needs assessment, visiting states, and providing them with guidance on implementation.

The role of human rights in the mandate and practice of the CTC has been the subject of analysis by a number of commentators.^[9] In the resolution establishing the CTC, there was only limited reference to the relevance of human rights to the work of the Committee,^[10] and there seemed initially to be little interest in making human rights scrutiny a significant part of the supervisory and support work of the CTC.

The scope of the mandate and the assumptions of CTC members at an early stage in the Committee’s work about the relevance of human rights are exemplified by a statement made on 18 January 2002 to the Security Council by Sir Jeremy Greenstock, at the time United Kingdom Permanent Representative to the UN and the first chair of the CTC:

Early on in the international response to 9/11, a number of international human rights bodies and non-government organisations (NGOs) saw clearly the danger posed to human rights by the possibility of excessive reactions to those events, and sought to remind international organisations and national governments of the importance of complying with human rights in designing their responses to terrorism. The Security Council, in particular its counter-terrorism committees, was seen as an especially important forum to engage with.

Among the important interventions^[12] were the actions taken by the then UN High Commissioner for Human Rights, Mary Robinson, who shortly after the adoption of Resolution 1373 expressed concern about the potential impact of the resolution on human rights, and in September 2002 presented the CTC with material on the human rights issues relevant to counter-terrorism measures, including a proposal to supplement the guidance already given to states as to what they should include in their reports to the CTC.^[13] As Human Rights Watch points out, while the document was posted on the CTC’s website, the Committee was not prepared to circulate it as an official document to member states.^[14]

In January 2002 Amnesty International also called on the CTC to appoint human rights experts to its staff and to incorporate human rights standards into its guidance.^[15] Robinson’s successor as Human Rights Commissioner, Sergio Vieira de Mello, addressed the CTC in October 2002 calling on the Committee to incorporate a human rights approach in its work.^[16] In June 2003 Sir Nigel Rodley, Vice-Chair of the Human Rights Committee and former Special Rapporteur on Torture, also appeared before the Committee to urge the CTC to assume responsibility for ensuring that counter-terrorism measures complied with human rights and to question states on the human rights dimensions of their anti-terrorism measures.^[17] In the same year the Office of the High Commissioner for Human Rights (OHCHR) released its digest of jurisprudence of human rights norms relevant to counter-terrorism activities.^[18] Louise Arbour, de Mello’s successor, has also spoken out consistently on the need for counter-terrorism measures to fully respect human rights. The Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, appointed in 2005, has also engaged with the Committee, through meetings and in his reports. Various states, such as Mexico, Chile and Germany, have also consistently supported the need for the CTC to take into account human rights standards as part of its work.^[19]

This sustained pressure from a variety of sources appears to have had an impact on the work of the CTC, at least in formal terms. The relevance of human rights norms to the implementation of Resolution 1373 and the work of the CTC was partly clarified in early 2003 by Resolution 1456, which stated that counter-terrorist measures should comply with international human rights law,^[20] although Flynn suggests that ‘there remained ambiguity as to whether it gave the Committee a firm basis to inquire into human rights-related matters’.^[21] That ambiguity he sees as put beyond doubt by Resolution 1624, adopted on 14 September 2005 following the London bombings of July 2005. Under the Resolution, the Council stressed that states should ensure that any measures they take to implement the resolution ‘comply with all of their obligations under international law, in particular international human rights law, refugee law, and humanitarian law’ and directed the CTC to ‘[i]nclude in its dialogue with Member States their efforts to implement this resolution’.^[22]

Internally, it had also been suggested in 2004 as part of the proposed ‘revitalisation’ of the CTC that there would be close cooperation with the OHCHR and the creation of a specific human rights position in the CTED.

In his report to the 62^nd session of the Commission on Human Rights, submitted in late 2005, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,^[23] Martin Scheinin, set out his analysis of the roughly 640 reports, which had been submitted to the CTC by member states under Resolution 1373 by the time he submitted his report.^[24] The purpose of the examination was ‘to assess the role of the CTC in promoting methods of counter‑terrorism that are in conformity with human rights, insensitive to human rights or, in the worst case, hostile to human rights’.^[25] The examination of the impact of the CTC’s scrutiny was not based on the CTC’s questions or comments — despite the CTC’s stated commitment to transparency and openness, these are not publicly available — but on the responses of states in their reports. Scheinin noted four categories of responses from states relevant to human rights issues:

Scheinin remained concerned that ‘the CTC has not always been sufficiently clear in respect of the duty to respect human rights while countering terrorism’ and that ‘[some] States may even have understood the CTC as promoting measures of counter-terrorism irrespective of their adverse consequences for human rights’.^[30]

Following the Council’s approval of the ‘revitalisation’ of the CTC at the end of 2005, the Committee adopted guidance on incorporating human rights in its work, and a human rights expert has been appointed to the staff of the CTED. The relevant document reiterates the need for states to ensure that counter-terrorism measures comply with human rights law, and also requires the CTED to provide the CTC with advice on how to ensure that states do this, to liaise with the OHCHR, and to include human rights into their communications strategy.^[31]

It is too early yet to tell whether the specific incorporation of human rights within the overall mandate of the Committee and the practice and personnel of the CTED will have a significant impact in terms of ensuring appropriate human rights scrutiny of states’ actions by the Committee, or more importantly the observance of human rights by states in their counter-terrorism measures. It seems that some significant progress has been made in the institutional design, but it will take some time before the effects of those changes can be seen.^[32] On 20 December 2006, the outgoing Chair of the CTC, Ambassador Ellen Margrethe Løj from Denmark, told the Security Council that ‘[it] has now become routine to include human rights aspects of States’ implementation of resolution 1373 (2001) in the work of the Committee’.^[33] While there is a standard description of the relevance of human rights to the work of the CTC and CTED in the CTC’s 2006 report to the Security Council,^[34] there is little detail of exactly how these considerations have been built into the work of the CTC and CTED.

Nevertheless, it is clear that the advances made from the original Resolution 1373, and early attitude of the CTC to the relevance of human rights to its work, has been significantly moved along through a process of mainstreaming. This has been the result of interventions by a wide range of actors: human rights bodies and individual experts, NGOs, and governments committed to ensuring that counter‑terrorism priorities did not simply displace human rights values. Since the CTC and related bodies are politically important and well-resourced actors in the counter-terrorism realm, it has been important to seek to insert human rights values in their normative framework and practices. Close scrutiny at international and national levels will be needed to ensure that these changes have a significant effect, and to continue to urge the full respect for human rights while supporting effective counter-terrorist measures. The broader lesson to be drawn from this is the importance of ensuring that human rights standards and expertise are mainstreamed into those bodies whose primary mission is counter-terrorism.