Letter dated 7 November 2014 from the Chair of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council

Letter dated 7 November 2014 from the Chair of the Security Council

Committee established pursuant to resolution 1373 (2001) concerning

counter-terrorism addressed to the President of the Security Council

I have the honour to submit herewith a preliminary analysis of the principal

gaps in Member States’ capacities to implement Security Council resolutions 1373

(2001) and 1624 (2005) that may hinder their abilities to stem the flow of foreign

terrorist fighters pursuant to Security Council resolution 2178 (2014) (see annex).

I should be grateful if the present letter and its annex were brought to the

attention of the members of the Security Council and issued as a document of the

Council.

(Signed) Raimonda Murmokaitė

Chair

Security Council Committee established pursuant to

resolution 1373 (2001) concerning counter-terrorism

Annex

Preliminary analysis of the principal gaps in Member

States’ capacities to implement Security Council resolutions

1373 (2001) and 1624 (2005) that may hinder their abilities

to stem the flow of foreign terrorist fighters pursuant to

Security Council resolution 2178 (2014)

I. Introduction

1. In resolution 2178 (2014), the Security Council addresses the threat posed by

foreign terrorist fighters and requests the Counter-Terrorism Committee Executive

Directorate to support the Counter-Terrorism Committee in three key areas:

(a) Identification of gaps in Member States’ implementation of Security

Council resolutions 1373 (2001) and 1624 (2005);

(b) Identification of good practices in States’ implementation efforts;

(c) Facilitation of the necessary technical assistance.

2. In an effort to address the first requirement, the Executive Directorate has

prepared the following preliminary, non-State-specific analysis of the principal gaps

that may affect the abilities of Member States to stem the flow of foreign terrorist

fighters.

II. Gaps in legal and judicial frameworks

3. In its resolution 1373 (2001), the Security Council requests that States ensure

that the financing, planning, preparation or perpetration of terrorist acts and support

for terrorist acts are established as serious criminal offences in domestic laws and

regulations and that the punishment duly reflects the seriousness of such acts. In its

resolution 2178 (2014), the Council requests that States ensure that they also have

the necessary legal measures in place to criminalize the travel by foreign terrorist

fighters to States other than their States of residence or nationality for the purpose

of committing the terrorist acts mentioned above, as well as the providing or

receiving of terrorist training, including in connection with armed conflict.

4. Pursuant to resolution 2178 (2014), States must determine whether their laws

criminalize specific acts relating to foreign terrorist fighters in accordance with that

resolution. The Executive Directorate’s preliminary analysis indicates that, although

many States have introduced, pursuant to resolution 1373 (2001), comprehensive

legislation that could be transposed to meet the challenge of foreign terrorist

fighters, others do not have adequate legislation in this respect. Some States do not

yet adequately criminalize the broad range of preventive offences required by the

resolution, and others have introduced overbroad legislation aimed at addressing

preparatory acts related to foreign terrorist fighters. Moreover, some States lack

legislation to address preparatory acts aimed at facilitating the travel of foreign

terrorist fighters (such as those who provide equipment or financing for, or organize

such travel). The Executive Directorate’s ongoing assessment of States’

implementation of resolution 1373 (2001) provides a good indication of which

States lack the legislation required in this regard.

5. On the positive side, some legal measures taken by States to implement

resolution 1373 (2001) over the past decade can be used to address certain crimes

committed by foreign terrorist fighters. For example, many States can now

prosecute alleged terrorists, including foreign terrorist fighters, on the basis of the

principle of nationality. However, some States do not adequately criminalize actions

by individuals to leave their territories with the intention of joining terrorist groups

abroad. Moreover, implementation of paragraph 6 of resolution 2178 (2014) means

that States must adopt more precise definitions of offences relating to foreign

terrorist fighters in national law, in order to ensure that enforcement action does not

infringe on rights such as the rights to freedom of movement and freedom of

conscience, which all Member States are obligated to uphold.

6. Some States do not criminalize travel by foreign terrorist fighters through their

territories in transit for the purpose of committing terrorist acts in other St ates. In its

resolution 1373 (2001), the Security Council requests that States deny safe haven to

those who finance, plan, support or commit terrorist acts, or who provide safe

havens. Although States have made considerable progress in this area, some may

need to strengthen their abilities to stem the flow of foreign terrorist fighters

moving through their territories.

7. Many States lack the capacity to ensure that individuals participating in

activities relating to foreign terrorist fighters are brought to justice through effective

prosecution, in accordance with resolutions 1373 (2001) and 2178 (2014). Bringing

foreign terrorist fighters to justice poses significant practical challenges. The

Committee’s ongoing dialogue with Member States regarding their implementation

of resolution 1373 (2001) has revealed difficulties in obtaining evidence from other

countries (whether of origin, transit or destination) and has shown that few foreign

terrorist fighters reveal their plans before leaving. Actions taken in isolation by

terrorists acting alone make the gathering of evidence against such individuals more

difficult and require the effective use of special investigative techniques that can

lead investigators to Internet communications and other covert activities that have

been undertaken to facilitate travel.

8. Gaps also exist in the area of effective international judicial cooperation. In its

resolution 1373 (2001), the Security Council requests that States afford one another

the greatest measure of assistance in connection with criminal investigations or

criminal proceedings relating to the financing or support of terrorist acts. In its

resolution 2178 (2014), the Council recalls this obligation and underlines the

importance of its fulfilment with respect to investigations or proceedings involving

foreign terrorist fighters. Experience has shown that foreign terrorist fighters will

not necessarily return to their country of origin. The Executive Directorate ’s

analysis has revealed useful information on the jurisdictional requirements of

resolution 1373 (2001) in this area. Although much progress has been made since

the adoption of resolution 1373 (2001), in some cases, the international

infrastructure for judicial cooperation is still slow and ineffective. Reasons for this

include lack of comprehensive arrangements and instruments for cooperation,

inadequate capacity and training, outdated procedures that do not take account of

new methods of evidence collection (in particular, special investigative techniques

and electronic evidence), and lack of political will.

9. In the area of international judicial cooperation, gaps continue to exist in

arrangements and mechanisms relating to extradition. Efforts by the Executive

Directorate and other facilitators, including international and regional organizations,

have helped to raise awareness of the strong foundation provided by the

international counter-terrorism instruments for inter-State cooperation in the

extradition of terrorist suspects. Nonetheless, the limited number of bilateral treaties

on extradition between States of origin, transit and destination with respect to the

movement of foreign terrorist fighters suggests that extradition is not always carried

out in the expeditious manner required by resolution 2178 (2014).

10. The questions of recruitment (addressed in resolution 1373 (2001)) and

incitement (addressed in resolution 1624 (2005)) are directly relevant to actions by

States to address the threat of foreign terrorist fighters, given that messages are

communicated to susceptible persons (often through the Internet and social media)

with the intent of recruiting such individuals to become foreign terrorist fighters or

inciting them to commit terrorist acts. Many States’ legal and judicial frameworks

continue to contain gaps that prevent them from taking effective action in this area,

and additional efforts, including steps to strengthen international cooperation, will

be required to implement these aspects of resolutions 1373 (2001) and 1624 (2005).

III. Gaps in law enforcement and border control measures

11. Important gaps of relevance to the threat of foreign terrorist fighters also exist

in the areas of law enforcement and border control, which are addressed by

resolutions 1373 (2001) and 1624 (2005). Regarding law enforcement, in resolution

1373 (2001), the Security Council requests that States take the necessary steps to

prevent the commission of terrorist acts. Law enforcement agencies have a number

of means at their disposal to accomplish this goal, including establishing a counterterrorism strategy with a law enforcement component, supported by a centralized

investigative structure and information-sharing among competent law enforcement

agencies. Another means is the effective use of special investigative techniques,

within a human rights and rule of law framework. As already noted, incitement and

recruitment of foreign terrorist fighters often take place through social media

platforms, the Internet and related communications technologies. However, many

States lack adequate capacities to monitor these communications through special

investigative techniques and other lawful methods in implementing the “prevention”

aspect of resolution 1373 (2001).

12. Effective implementation of community policing programmes is another area

in which some States lack adequate capacities. The prevention of terrorist acts

(including acts relating to foreign terrorist fighters) established in resolution 1373

(2001) could be facilitated through reliance on such programmes, which help to

bring together law enforcement agencies and local communities to detect and

prevent terrorist activities in an atmosphere of mutual trust. The Committee ’s

assessments have shown the existence of good practices in some States in

implementing community policing programmes but significant gaps remain in other

States.

13. Gaps also exist in the international exchange of information by Member

States’ law enforcement and intelligence agencies aimed at preventing the

commission of terrorist acts and bringing terrorists, including foreign terrorist

fighters, to justice. In resolution 1373 (2001), the Security Council requests that

States take the necessary steps to prevent the commission of terrorist acts, including

by provision of early warning to other States by exchange of information. It further

calls upon States to find ways of intensifying and accelerating the exchange of

operational information, especially regarding actions or movements of terrorist

persons or networks. This form of information exchange can be vital to countering

the threat of foreign terrorist fighters and needs to be enhanced.

14. Major gaps also exist in States’ implementation of the border control

requirements of resolutions 1373 (2001) and 1624 (2005). This presents additional

obstacles to the effective implementation of resolution 2178 (2014). In resolution

1373 (2001), the Security Council requests that States prevent the movement of

terrorists or terrorist groups by effective border controls and controls on the

issuance of identity papers and travel documents, and through measures for

preventing counterfeiting, forgery or fraudulent use of identity papers and travel

documents. Many States still lack effective mechanisms for implementing these

requirements. Such mechanisms include clear policies and measures to ensure the

security and integrity of the identity and travel document issuance process and

control measures at airports and other border crossings designed to ensure the

effective screening of travellers. Such measures include risk analysis; access to or

strengthened use of advance passenger information; assessment of travel patterns

and verification against national alert lists; and adequate training of front-line

officers and equipment.

15. Many States are either inadequately connected to, or do not fully exploit, the

databases of the International Criminal Police Organization (INTERPOL), including

its database on stolen and lost travel documents. In many States, communication

between the INTERPOL National Central Bureau and remote border outposts is

insufficient. Other persistent shortfalls include lack of information exchange among

States and the lack of lawful and appropriate administrative measures preventing

travel by foreign terrorist fighters. These gaps increase the risk that foreign terrorist

fighters will continue to move with relative ease between States for the purpose of

committing terrorist acts abroad.

16. Lastly, the porous and lengthy nature of many land borders (including those of

States most affected by the foreign terrorist fighter phenomenon) and the lack of

necessary equipment and professionally trained border control personnel also

continue to increase States’ vulnerabilities.

IV. Gaps in counter-financing of terrorism measures

17. Continued gaps in States’ implementation of their obligations in the area of the

counter-financing of terrorism pursuant to resolution 1373 (2001) will hinder

effective implementation of resolution 2178 (2014). Some States have yet to ensure

that their legal frameworks include criminalization of terrorist financing and thus

ensure that they can bring the financiers of foreign terrorist fighters to justice. Some

States have yet to establish mechanisms for the freezing of terrorist assets without

delay in order to prevent and disrupt related financial flows. Many States still the

lack the ability to effectively identify and prevent the illicit cross-border movement

of cash (which is one of the main methods used to finance terrorism, including the

activities of foreign terrorist fighters), to regulate alternative remittances, and to

prevent the abuse of charities and non-profit organizations for the purpose of

terrorist financing.

18. Although many States have made important progress in implementing these

elements of resolution 1373 (2001), challenges remain. Not all States criminalize

the use of licit funds in the financing of terrorism, focusing instead on the use of

“proceeds of crime” laws. In some cases, relevant laws are applicable only to

individuals, excluding organizations. Some national laws do not provide for the

freezing of assets without delay as a preventive measure or lack established

designation processes, and some States lack due process safeguards in freezing and

designation procedures.

19. With respect to measures for regulating alternative remittances and preventing

abuse of the non-profit organization sector, many States still face challenges in

putting in place effective risk-based controls. Few States have conducted reviews of

their non-profit organization sectors with respect to terrorist financing. This leaves

their non-profit organization sectors underregulated and vulnerable to abuse by

foreign terrorist fighters. Conversely, overregulation in some States could lead to

“underground” or informal donations and fundraising, which may go undetected by

the authorities. Moreover, financial institutions with an international presence and

little appetite for risk may seek to comply with anti-money-laundering/counterfinancing of terrorism standards by closing the accounts of legitimate charities. This

may encourage increased movements of cash and non-official flows of humanitarian

assistance, sometimes in the form of makeshift “humanitarian convoys”. Few States

work actively with either the private sector or the non-profit organization sector to

provide guidance on how to protect financial flows derived from charitable giving

while ensuring that such flows are not diverted to terrorist organizations. In many

States, there is inadequate interaction between Government, the formal financial

sector and alternative remittance operators. In consequence, early warning signs

from informal operators, including with respect to foreign terrorist fighters, may not

come to the attention of oversight agencies.

20. In some States, law enforcement authorities lack the necessary knowledge and

capacity to conduct effective financial investigations that can effectively track and

disrupt illicit international financial flows and identify and prevent the activities of

those that fund terrorism. Some States do not take adequate measures to detect and

prevent the illicit physical cross-border transportation of cash. Moreover, the

information generated by such measures in many States is not accessed, verified and

incitement motivated by extremism and intolerance. In both resolutions, the Council

requests that States take action to confront the extremist ideas that underlie terrorist

and violent extremist action through law enforcement measures, where appropriate,

as well as through other policies aimed at delegitimizing the terrorist narrative

within a human rights and rule of law framework.

22. Awareness of the role of countering violent extremism in successful counterterrorism strategies has grown considerably in recent years. However, significant

gaps remain in State practice. Some States have not yet taken adequate steps to

initiate community policing and community engagement programmes or to develop

strategies for effectively conveying counter-messages. There are also gaps in States’

efforts to counter the use of information and communications technologies,

including the Internet, by terrorists and their supporters to incite terrorist acts and

encourage support and sympathy for terrorist groups.

23. States do not yet provide sufficient support for programmes to strengthen

peace education and education in intercultural understanding, initiatives to

strengthen dialogue among civilizations or, as called for by the Security Council in

resolution 2178 (2014), initiatives to address conditions conducive to the spread of

violent extremism, including by empowering youth, families, women, religious,

cultural and education leaders, and other relevant civil society groups. Effective

implementation of resolutions 1624 (2005) and 2178 (2014) could further be

enhanced by strengthening efforts to develop, in accordance with resolution 2178

(2014), “non-violent alternative avenues for conflict prevention and resolution by

affected individuals and local communities to decrease the risk of radicalization to

terrorism”. In these and other areas relating to countering violent extremism,

significant gaps in State practice hinder States’ capacities to stem the flow of

foreign terrorist fighters.

24. One particular gap in many States is the lack of effective strategies and

programmes for the rehabilitation and reintegration of returning foreign terrorist

fighters. The development of such strategies and programmes is a specific

requirement of resolution 2178 (2014), in which the Security Council also requests

that States adopt prosecutorial strategies to hold foreign terrorist fighters

accountable for terrorist acts, while also assessing whether alternative means exist

to better facilitate their rehabilitation and reintegration.

VI. Gaps in compliance with human rights obligations and the rule

of law

25. There continue to be significant gaps in States’ efforts to ensure compliance

with human rights and rule of law obligations in the context of counter-terrorism

measures taken to implement resolutions 1373 (2001) and 1624 (2005). This may

foreshadow similar gaps in the implementation of resolution 2178 (2014). The

Security Council has repeatedly declared that counter-terrorism measures taken by

States must comply with their obligations under international law, including

international human rights law, international refugee law and international

humanitarian law. In the preamble to its resolution 2178 (2014), the Council further

notes that failure by States to comply with human rights and rule of law obligations

contributes to increased radicalization, which may in turn result in increased

criminal activity by foreign terrorist fighters.

26. The findings of United Nations human rights mechanisms make clear that

significant gaps still exist in States’ compliance with their obligations under

international law within the framework of counter-terrorism. Some States’ counterterrorism laws lack the clarity and precision required to ensure that such laws are

not used in violation of the rights to freedom of expression, opinion, belief or

association.

27. Many States fail to ensure fair treatment and due process for persons accused

of terrorist offences, to protect the right to freedom from discrimination or to ensure

respect for personal integrity and freedom from torture and ill treatment for

terrorism suspects. The gravity of the terrorist threat has prompted many States to

introduce strong measures, sometimes in haste and without adequate oversight or

protective mechanisms. Many States implement counter-terrorism measures without

taking their human rights obligations fully into account. This can increase

radicalization and serve as a condition conducive to the spread of terrorism. States

will therefore need to address gaps in their compliance with human rights

obligations in order to limit radicalization and help to stem the flow of foreign

terrorist fighters across international borders.

28. Serious gaps also remain in connection with refugee flows and compliance

with international refugee law and relevant provisions of resolutions 1373 (2001),

1624 (2005) and 2178 (2014). Conflicts in States affected by the foreign terrorist

fighter threat have brought large movements of refugees and asylum seekers across

borders. The number of internally displaced persons is also growing rapidly. Some

States in affected regions lack effective mechanisms to manage these complex

situations and face major challenges in identifying and protecting refugees while

also preventing entry into their territories by individuals involved in terrorist acts,

as required by international law, including the relevant Security Council resolutions.