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Adapting to Transnational Terrorism: The UN Security Council's Evolving Approach
to Terrorism
Monika Heupel Security Dialogue 2007 38: 477 DOI: 10.1177/0967010607084997
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International Peace Research Institute, Oslo
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Adapting to Transnational Terrorism: The UN Security Council's Evolving Approach to Terrorism
MONIKA HEUPEL*
German Institute for International and Security Affairs (SWP), Berlin
During the 1990s, and particularly since 9/11, state-sponsored terrorism gradually declined, while transnational terrorism, which largely operates without direct state support and features cross-border network structures and a greater propensity to mass-casualty attacks, has gained in importance. Setting out from this observation, the purpose of this article is to examine whether the UN Security Council (SC) has adapted to transnational terrorism and, if so, how. Providing a systematic and theory-guided comparison of the SC's approach to these different types of terrorism, the article shows that, contrary to common considerations, the SC did adapt to transnational terrorism. The SC applied sanctions against terrorists and committed every state to instituting far-reaching generic counter-terrorism measures. Moreover, in an unprecedented way, it made use of managerial compliance strategies to foster implementation. In this way, the SC adapted to transnational terrorism by demanding more from states and intervening deeper into their domestic realm, while at the same time offering more support with respect to implementation. While such an approach is unlikely to become common SC practice in the short term, it is nevertheless symptomatic of a broader trend in the evolution of governance patterns in the post-national constellation today.
Keywords   United Nations • Security Council • transnational terrorism • binding obligations • compliance
Introduction
OVER THE COURSE OF THE 1990s, and particularly since 11 September 2001, state-sponsored terrorism has gradually declined, whereas transnational terrorism has gained in importance. During
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© 2007 PRIO, www.prio.no SAGE Publications, http://sdi.sagepub.com Vol. 38(4): 477-499, DOI: 10.1177/0967010607084997
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the 1970s and 1980s, many states had backed terrorist organizations in their efforts to destabilize other states. In the 1990s and 2000s, state-sponsored terrorism did not vanish, as is evident, for example, from the persistent links between terrorist groups and Iran and Syria. However, state-sponsored terrorism has gradually given way to a form of terrorism that we can call transnational terrorism, as it relies to a lesser degree on direct state support and features cross-border network structures. This form of terrorism, as epitomized by al-Qaeda after the overthrow of the Taliban regime in Afghanistan, commonly uses weak and failing states as safe havens and receives support from various non-state actors. Spanning a global transnational network, it capitalizes on legal loopholes and deficiencies in law enforcement in developing and developed countries alike.
The UN Security Council (SC) has become an increasingly important actor in the global anti-terrorism campaign. While the General Assembly had traditionally been the UN body to deal with terrorism, the SC has since the end of the Cold War clearly expanded its scope and adopted various binding terrorism-related resolutions (Jonge Oudraat, 2004). As with other issue-areas, the actual impact of these resolutions varies. Sanctions against Sudan, for instance, which has been suspected of sponsoring terrorists, were largely futile. Sanctions against Libya, in contrast, when combined with other measures, ultimately persuaded the Libyan government to renounce support for terrorism (Cortright & Lopez, 2002). Yet, despite this mixed impact, the SC plays a unique role in the global campaign against terrorism. Only the SC has the authority to impose binding counter-terrorism obligations on virtually all states. Moreover, it enjoys greater legitimacy than many other international bodies. Whether - and, if so, how - the SC adapts to the spread of transnational terrorism, therefore, not only is an academic question but has practical relevance.
It is far from obvious, however, to assume that the SC is actually able to adapt to the spread of transnational terrorism. There exists seminal research on the propensity of international organizations towards dysfunctional or pathological behavior, which leads to their failure to respond to new exigencies (Barnett & Finnemore, 2004). Furthermore, scholars frequently question the capability of the UN and its Security Council to adapt to the changing features of today's security threats (Righter, 1995). Moreover, terrorism seems to be an especially challenging area of activity for the SC. Some consider the Council to be incapable of dealing with 'nerve-center' security issues; others point to the lack of a commonly accepted definition of terrorism (Glennon, 2003; O'Neill, 2003). Finally, transnational terrorism in particular poses specific challenges. When confronted with state-sponsored terrorism, the SC can - provided there is sufficient consensus among its members - determine a threat to international peace and security and impose sanctions against the state in question. Sanctions against non-state actors, however, are usually
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more difficult to implement than sanctions against states. Moreover, given that terrorists and their non-state associates operate in various countries, the SC would have to induce every state to address its legislation and law-enforcement gaps.
The purpose of this article is to examine whether - and, if so, how - the SC has nevertheless adapted to transnational terrorism. Has the SC adapted to the emergence of transnational terrorism insofar as it has introduced new means in order to meet new demands?1 Can we observe what has been termed simple or single-loop learning, in the sense that the SC has made an effort to adjust its instrumental ends?2 The article thereby treats the SC primarily as a 'black box', in the sense that it is primarily concerned with whether adaptation has taken place as opposed to what action by individual SC members has caused adaptation. Yet, the article goes beyond existing empirical research on the transformation of terrorism and the SC's approach to terrorism. Research on the former mainly exposes the features of different types of terrorism and attempts to identify factors that might account for the emergence of transnational terrorism (see, for example, Schneckener, 2006). Research on the latter primarily describes how the SC has addressed the phenomenon of terrorism over time, what the shortcomings of the SC's approach are, and how these could be remedied (see, for example, Jonge Oudraat, 2004; Luck, 2007). This article provides a systematic interlinkage of these two strands of literature. Moreover, by drawing on compliance theory to compare the SC's response to state-sponsored and transnational terrorism, the article transcends the empirical bias of existing research. In this way, the article intends to contribute to a better understanding of how the SC adapts to emerging security threats and how new governance patterns evolve.
Drawing on UN documents, secondary sources, and background conversations with UN staff and member-state representatives, the article finally demonstrates that, contrary to common considerations, the SC has adapted to transnational terrorism. Over time, the SC appears to have realized that the specific features of transnational terrorism require new strategies. It therefore turned to imposing sanctions against terrorists and their non-state associates and committed all states to implementing these sanctions. Furthermore, the SC obligated all states to strengthen their domestic capacities to prevent and suppress terrorism. Finally, the SC recognized that most states needed implementation assistance and therefore, in an unprecedented way, applied managerial compliance strategies.3 Given that implementation is a long-term undertaking, it is premature to speculate what actual impact the SC's response to transnational terrorism will ultimately have. Most notably the
1 For the concept of 'adaptation', see Haas (1990).
2 For the concept of simple or single-loop learning, see Argyris & Schon (1978).
3 Telephone background conversations with a member-state representative working at the UN, 29 March
2007, and with Vladimir Salov, Counselor at the Russian Mission to the UN, 3 April 2007.
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generic obligations would, however, without doubt make a huge difference if effectively implemented. Moreover, the SC's efforts to facilitate compliance have - despite some important shortfalls - supported member-states' implementation efforts.
The article starts by elaborating on the transformation on terrorism. A second section outlines the dimensions according to which the SC's adaptation to transnational terrorism is assessed, that is, the imposition of binding obligations and the application of compliance strategies. The main part of the article compares the SC's response to state-sponsored and transnational terrorism. A conclusion summarizes and interprets the results and touches on their broader implications.
The Gradual Shift from State-Sponsored to Transnational Terrorism
During the 1970s and 1980s, state-sponsored terrorism emerged as a major security threat. Several countries in the Middle East and North Africa began supporting terrorists as a strategy to destabilize other countries. Libya, for instance, financed and provided training to various terrorists. After the revolution in the late 1970s, Iran began to give radical Islamic groups financial and military support. Syria hosted several terrorist groups in its national territory and in Lebanon, and cooperated with Iran in supporting Hezbollah. State-sponsored terrorism was also a widespread phenomenon in other parts of the world. From the late 1960s onwards, the Soviet Union and its Eastern European allies provided financial support as well as safe havens and training camps for various terrorist groups. Cuba backed numerous terrorist groups in Latin America. North Korea made retreats available to the Japanese Red Army. Finally, also the USA supported rebel groups that used terrorist strategies, such as the Nicaraguan 'Contras'.4
State-sponsored terrorism continued to constitute a serious security threat in the 1990s. Some states resumed their support, and others, such as Sudan, which harbored various Middle Eastern terrorist groups, began sponsoring terrorism (Laqueur, 1999). However, there has been a slow but steady decline in state-sponsored terrorist incidents since the early 1990s (Zangl & Ziirn, 2003; Enders & Sandler, 2005). With the end of the Cold War, the successor states of the Soviet Union and its former Eastern European allies lost interest in destabilizing Western countries (Enders & Sandler, 1999: 146). Furthermore, economic sanctions, military force, and other forms of international
4 For an overview of state-sponsored terrorism in the 1970s and 1980s, see Laqueur (1999:156-183); Hoffman (2006).
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pressure have deterred at least some states from openly supporting terrorism (Schneckener, 2002).
Accompanying this decline in state-sponsored terrorism, a new type of terrorism - transnational terrorism - has emerged, epitomized by the al-Qaeda network after the fall of the Taliban regime. Instead of predominantly depending on safe havens provided by states, terrorist groups increasingly turned to using weak and failing states, whose governments had no monopoly of force throughout their national territory, as retreats and training bases. Parts of Afghanistan and northwest Pakistan have served as a hideout for al-Qaeda and Taliban units since the overthrow of the Taliban regime (Liiders, 2003: 11-16). Various Southeast Asian terrorist groups have established training camps in the southern Philippines, an area largely outside government control (Rabasa, 2003: 47-55). In addition, transnational terrorism has come to rely to a larger degree on financial support from various non-state actors around the globe. Financial donations from religious organizations, allegedly philanthropic foundations, and rich individuals are widespread. Moreover, some groups that apply terrorist tactics, such as the Sri Lankan LTTE, collect taxes from diaspora communities abroad (Wayland, 2004). Yet another strategy is to cooperate with local warlords in illegal economic activities, as exemplified by al-Qaeda's joint illicit diamond transactions with the Sierra Leonean rebel group the Revolutionary United Front (RUF) (Campbell, 2002: 187-194). Finally, transnational terrorism appears to have a greater propensity to mass-casualty attacks. The 9/11 attacks indicate that aiming for maximal damage has become a terrorist strategy. What is more, al-Qaeda has made no secret of its intention to use the limited biological, chemical, and radiological capabilities it is believed to possess (Schneckener, 2006).
Since the 9/11 attacks, the shift from state-sponsored to transnational terrorism has intensified. The military intervention in Afghanistan within the context of the US-led 'War on Terror', as well as the numerous non-military counter-terrorism initiatives by the UN, the EU, the G-8, and other multilateral bodies, have made it clear that state implication in terrorism is less likely to be tolerated. Thus, the significance of openly sponsoring terrorism as a means for states to pursue their interests has declined even further (Schneckener, 2002). Furthermore, military counter-terrorism campaigns, as well as the expansion of non-military initiatives in the wake of 9/11, have given rise to a further decentralization of the organizational structures of terrorist groups and networks (Millar et al., 2005).
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Dimensions of Analysis
Binding Obligations
Article 39 of Chapter VII of the UN Charter empowers the SC to 'determine the existence of any threat to the peace, breach of the peace, or act of aggression and [to] make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security'. If the SC so decides, the obligations it imposes on member-states can be made legally binding.
Normally, the SC enjoins binding obligations with respect to concrete security threats. Since the end of the Cold War, the SC has frequently enacted sanctions against specific states, groups, or individuals, and pledged every state to implement certain measures to comply with such sanctions regimes. Furthermore, the SC has established ad hoc tribunals - the International Criminal Tribunal for the former Yugoslavia, for instance - and bound every state to cooperate with them. Only in the early 2000s did the SC for the first time turn to imposing binding obligations on states in relation to abstract threats (Szasz, 2002; Talmon, 2005). Examples of this approach are the SC resolutions that exempt certain members of UN-authorized missions from the jurisdiction of the International Criminal Court.5
Binding obligations vary in terms of the 'depth' of the policy changes states are expected to institute. Some obligations are relatively easy to implement. Diplomatic sanctions against a specific country, for example, usually require states merely to reduce or expel diplomatic staff of the respective country in or from their national territory and/or reduce or withdraw their own diplomatic staff from that country. Other obligations require more profound policy changes and affect behind-the-border politics. Behind-the-border politics relates to the regulation of problems that arise in the domestic realm but have implications beyond it, as opposed to at-the-border politics, which applies to the regulation of purely interstate problems (Kahler, 1995). Examples of intervention in behind-the-border issues through SC resolutions are comprehensive sanctions regimes that demand quite substantive domestic policy changes on the part of UN member-states.
Compliance Strategies
Compliance is commonly defined as conformity of the actual behavior of an actor with specific requirements (Young, 1979). Over the years, two distinct perspectives on compliance have developed - the Enforcement School and the Management School - and these are based on different assumptions as
5 For example, UN Security Council Resolution 1422 (2002).
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to why states comply or fail to comply with obligations, and on how noncompliance can best be remedied.
The Enforcement School assumes that states comply with obligations if the benefits of compliance outweigh the costs. Thus, states deliberately opt for non-compliance if norm violation entails higher benefits than costs. To address compliance problems and deter non-compliance, therefore, proponents of the Enforcement School recommend controlling the cost-benefit calculations of states through thorough monitoring and the threat or use of sanctions in cases of norm violation. Monitoring is supposed to create transparency and so make the exposure of non-compliance more likely. Sanctions against norm-violating states are meant to increase the cost of non-compliant behavior.6
The Security Council has created various tools to monitor compliance with its binding obligations and to punish norm violation. To monitor implementation, the SC commonly calls upon states to submit reports in which they outline the steps they have taken. The SC can also authorize on-site inspections, as it has done when authorizing UN and IAEA experts to oversee the dismantling of Iraq's weapons of mass destruction (WMD) programs. In some cases, the SC has drawn on information provided by national intelligence and international organizations on states' (non-)compliance. If the SC ascertains willful non-compliance, and believes this to be a threat to international peace and security, it can impose sanctions. For example, when Liberia purposely violated the sanctions against the Sierra Leonean RUF, the SC applied secondary sanctions against Liberia (Cortright & Lopez, 2002).
The Management School assumes that, in principle, states intend to comply with international rules but unintentionally fail to do so. Thus, noncompliance can be attributed to a lack of sufficient economic and/or political capacities. Non-compliance can also be attributed to ambiguity in the rules by which states have to orient their policies, or to uncertainties as to which measures should be taken to reach a given target. Finally, uncertainty as to whether other states are committed to complying may make states opt for non-compliant behavior. Advocates of the Management School therefore consider enforcement strategies to be counterproductive and instead recommend problem-solving strategies to remedy non-compliance. Consequently, they recommend capacity-building measures and different forms of help with rule interpretation - formal dispute-settlement procedures by legal bodies or non-binding mediation - and they emphasize the importance of transparent compliance management.7
The SC can adopt various measures to foster compliance within the framework of a cooperative, problem-solving approach. The SC and its subsidiary
6 See, for example, Axelrod & Keohane (1986); Downs, Rocke & Barsoom (1996); Fearon (1998).
7 See, for example, Franck (1990); Mitchell (1994); Chayes & Chayes (1995).
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bodies have in some cases endeavored to facilitate capacity-building and to provide technical assistance to member-states by forging contacts between assistance providers and states in need of assistance. In addition, the SC has engaged in formal and informal forms of rule interpretation, such as adopting follow-up resolutions to specify obligations or involving individual states in informal dialogue. To enhance trust in other states' implementation efforts, the SC has in recent years increasingly conducted briefings on its work and provided access to documents on member-states' activities on its website.
The UN Security Council's Adaptation to Transnational Terrorism
The Security Council and State-Sponsored Terrorism Binding Obligations
The first time that the SC imposed binding obligations on member-states in relation to state-sponsored terrorism was in the context of its sanctions regime against Libya. After the bombing of two civilian airliners over Lockerbie (Scotland) and Niger in 1988 and 1989, respectively, Western intelligence identified Libyan agents as being significantly involved in the assaults (Hurd, 2005: 203). The SC demanded that Libya extradite the suspects, accept responsibility for the terrorist acts, disclose its information on the bombings, pay compensation, and cease all forms of involvement in and support for terrorism.8 When Libya did not fully comply with its demands, the Council in 1992 invoked Chapter VII of the UN Charter and bound all states to apply comprehensive measures against Libya. Every state was to restrict air travel to and from Libya, prohibit the sale of aircraft and aircraft-related material to Libya, adhere to an arms embargo, terminate military assistance and training, reduce the number of Libyan diplomats within their national territory, and expel from their territory any Libyan nationals suspected of involvement in terrorism.9 A year later, the SC additionally required every state to freeze financial resources owned or controlled by the Libyan government or any Libyan enterprise (except those derived from the sale or supply of petroleum and a few other products), prohibit the export of certain oil-transporting equipment, and implement tightened aviation sanctions.10
8 UN Security Council Resolution 731 (1992).
9 UN Security Council Resolution 748 (1992).
10 UN Security Council Resolution 883 (1993).
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Sudan was the second state suspected of sponsoring terrorism to be targeted by the SC. Following the assassination attempt against Egyptian President Hosni Mubarak in Ethiopia in 1995, the Organization of African Unity (OAU) requested Sudan to hand over three suspects to Ethiopia for prosecution and to desist from harboring and assisting individuals and groups implicated in terrorist activities (Niblock, 2001: 204-205). The Sudanese government failed to meet these requests, however, which prompted the SC to call upon it to comply fully with the demands of the OAU." When Sudan continued to maintain that the suspects were not in its national territory, the SC in 1996 finally applied diplomatic sanctions against Sudan and requested all member-states to take the necessary steps to implement the sanctions (Niblock, 2001: 202). States were to reduce the number and level of Sudanese diplomats in their territory, control the movement of the remaining diplomats, and restrict the entry or transit of Sudanese government officials and armed forces.12
In the late 1990s, the SC imposed binding obligations on member-states in the context of its sanctions regime against the Taliban, which by then controlled 90% of Afghanistan and were recognized by some countries as Afghanistan's legitimate government. After the bombings of the US embassies in Kenya and Tanzania in 1998, the SC repeatedly called upon the Taliban to refrain from providing a safe haven and training base to terrorists and to surrender Osama bin Laden and his associates, which the USA suspected to be responsible for the bombings.13 When the Taliban refused to do so, the SC in 1999 compelled all UN member-states to implement comprehensive sanctions against the Taliban regime. All states were required to prohibit any aircraft owned or controlled by the Taliban to take off from or land in their territory and to freeze assets owned or controlled by the Taliban.14 In 2000, the SC additionally required every state to implement an embargo of arms and related material against Taliban-controlled Afghanistan, end military assistance and training, close down Taliban offices and reduce the number of Taliban diplomats in their countries, restrict the movement of the remaining Taliban, freeze financial assets of the Taliban, bin Laden and his associates, and prevent the import into Afghanistan of acetic anhydride, which is used for transforming opium into heroine.15
Compliance Strategies
After the adoption of sanctions against Libya, the SC made use of both enforcement-based and managerial compliance strategies, but - consistent
11 UN Security Council Resolution 1044 (1996).
12 UN Security Council Resolution 1054 (1996).
13 UN Security Council Resolutions 1189 (1998), 1193 (1998), 1214 (1998).
14 UN Security Council Resolution 1267 (1999).
15 UN Security Council Resolution 1333 (2000).
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with its general approach to compliance at that time - was reluctant to apply an overall proactive approach towards fostering compliance. The SC did establish a Sanctions Committee to oversee and facilitate compliance, which, however, interpreted its mandate in a fairly noncommittal fashion. In terms of monitoring states' adherence to the binding obligations set out in the respective resolutions, the Committee relied on evidence forwarded by individual states and their intelligence services on sanctions violations by other states.16 In addition, it registered reports on implementation efforts that states were summoned to submit. However, since only a few states essentially submitted reports to the Committee, the information that could be gleaned from the reports on states' actions was of limited value (Cortright & Lopez, 2000:117).
In terms of managerial compliance strategies, the Libya Sanctions Committee made some efforts to engage member-states in dialogue in order to build confidence and clarify exactly what steps states were expected to take to implement the requirements. The Committee gave regular briefings to all member-states so as to create transparency.17 It exchanged correspondence with states on compliance issues and discussed norm violations bilaterally with the respective states.18 Finally, the Committee granted exemptions from the aviation sanctions by approving special arrangements for emergency medical air evacuation and flights taking pilgrims to Mecca.19 Facilitation of technical assistance has not been taken into consideration.
Following the imposition of diplomatic sanctions against Sudan, the SC remained rather passive in terms of strengthening member-states' compliance with the binding obligations imposed on them, although states' efforts to implement the sanctions varied greatly (Cortright & Lopez, 2000:123). Going against common practice, the SC did not even establish a Sanctions Committee that could have coordinated monitoring procedures or supported implementation efforts. The SC omitted to strictly monitor states' activities, but rather largely relied on reports states were requested to submit to the Secretary-General.20 However, since submission of reports on implementation efforts was not obligatory, only a limited number of states bothered to hand any in.21 Punishment for non-compliant behavior has not been considered.
Also when it came to managerial compliance strategies, the SC remained quite reserved. Obviously, the SC did not engage in capacity-building, as usually the implementation of diplomatic sanctions does not primarily hinge upon capacities. In fact, it is the implementation of trade embargoes or the freezing of assets that require legislative adjustments and the expansion of
United Nations (1996c). United Nations (1996c). United Nations (1997). United Nations (1999).
UN Security Council Resolution 1054 (1996); see also United Nations (1996b). United Nations (1996b).
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administrative capabilities, as well as effective law enforcement, and thus suggest a focus on capacity-building to foster compliance. Yet, also in terms of other managerial strategies that might have been instrumental in enhancing compliance - particularly rule interpretation - the SC was fairly dormant. Most notably, it was the absence of a Sanctions Committee that left member-states with little guidance on how to construe the obligations inflicted on them (Cortright & Lopez, 2000: 123). Consequently, member-states mainly depended on common briefings and notes verbales to find out precisely what requirements they were expected to comply with.22
When it came to fostering compliance with the obligations enjoined on states in conjunction with the sanctions against the Taliban regime between 1999 and 2001, the SC intended to take a somewhat more active approach. The Council put a greater emphasis on monitoring states' implementation efforts. It created a Sanctions Committee to examine the reports states were called upon to submit to provide information on the steps they had taken to implement the respective obligations.23 Again, however, only a limited number of states actually produced such reports (Rosand, 2004: 758-759). In addition, however, the SC dispatched fact-finding missions to Afghanistan's neighboring states, among other things to gather information on local implementation endeavors24
Moreover, from 2000 onward, the SC stepped up endeavors to support member-states' efforts at implementation through a managerial approach, thereby focusing on capacity-building.25 Most importantly, it created a Committee of Experts to determine how states' adherence to the sanctions regime could best be encouraged.26 The Committee arranged fact-finding missions to Afghanistan's neighboring states to learn about the implementation difficulties states encountered and how those states could best be helped. Ultimately, the Committee concluded that the countries surrounding Afghanistan lacked sufficient capacities to implement the sanctions against the Taliban. It therefore advised the establishment of a mechanism consisting of a Sanctions Monitoring Office outside the region and expert teams within the countries in question, which were to assist the local authorities in different aspects relevant to implementation.27 The SC approved the advice of the experts in July 2001. However, the 9/11 attacks and the ensuing military intervention against the Taliban regime terminated preparations for the establishment of the mechanism (Cortright & Lopez, 2002: 54).
United Nations (1996a).
United Nations (2000).
United Nations (2001), Paragraph 15(a).
Prior to this, the Committee had already tried to engage member-states in a dialogue by writing notes verbales, drawing attention to particular issues, and considering requests for exemptions (United Nations, 2000).
UN Security Council Resolution 1333 (2000).
United Nations (2001); background conversation with a UN official, New York, 9 May 2006.
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The Security Council and Transnational Terrorism Binding Obligations
After the overthrow of the Taliban regime in Afghanistan in late 2001, the SC applied sanctions against al-Qaeda, the remaining Taliban units - since their overthrow a non-state actor - and their associates, and obligated all states to implement these sanctions. Prior to 9/11, the SC's strategy for targeting the al-Qaeda network had primarily consisted of the sanctions package against the Taliban regime; only in Resolution 1333 (2000) did the SC apply limited sanctions against al-Qaeda. After the downfall of the Taliban regime, the SC recognized that al-Qaeda had lost its main state(-like) sponsor and restructured its sanctions regime to adjust it to the altered circumstances.
Consequently, Resolution 1390 (2002) and its follow-up resolutions required all states to take relatively extensive measures to directly target al-Qaeda and the Taliban, as well as individuals, groups, undertakings, and entities associated with them. All states had to freeze financial assets and economic resources owned or controlled by individuals or entities subject to the sanctions. Moreover, all states were to prohibit the entry into and transit through their territory of the designated individuals. Finally, states were required to prohibit supply, sale, and transfer of arms and related materials, as well as refrain from providing training or military assistance to the respective individuals and entities.28
Besides restructuring the al-Qaeda/Taliban sanctions regime, the SC adapted to the specific features of transnational terrorism by imposing generic binding obligations without reference to concrete terrorist groups or incidents.29 Less than three weeks after 9/11, the SC adopted its landmark Resolution 1373 (2001), which had been predominantly developed by the USA but enjoyed full support from the remaining SC members. The resolution declared that any act of terrorism per se is a threat to international peace and security and entailed various extensive generic binding counter-terrorism obligations on every UN member-state.30
Pursuant to Resolution 1373, all states are required to define terrorist acts as serious criminal offenses in their domestic legislation, ensure that punishment for terrorist acts reflects their severity, and guarantee that individuals involved in terrorism are brought to justice. All states are obligated to avert the execution of terrorist acts, forestall recruitment to terrorist groups, and cut off supplies of weapons to terrorists. Beyond this, states are enjoined to
28 UN Security Council Resolutions 1390 (2002), 1526 (2004), 1617 (2005).
19 Telephone background conversations with a member-state representative working at the UN, 29 March
2007, and with a former official at the US mission to the UN, 4 April 2007. 30 Only a few requirements stated in the resolution relate to the 'old paradigm' of state-sponsored terrorism
and obligate states to refrain from providing active support to terrorists; see Paragraph 2(a) of UN
Security Council Resolution 1373 (2001).
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prevent individuals implicated in terrorist acts from using their territory for terrorist-related activities, prohibit the movement of terrorists and terrorist groups, and take measures to foreclose forgery and the deceptive use of identity documents. States are obliged to exchange information relevant to the prevention of terrorist acts with each other and provide one another assistance with regard to criminal investigations and proceedings. Lastly, all states are obliged to criminalize and prohibit the collection and supply of financial assets or economic resources intended to be used to carry out terrorist acts. Also, all states are bound to freeze assets or economic resources of individuals and entities implicated in terrorism.31 Resolution 1373 thus clearly acknowledges the distinct features of transnational terrorism - its use of developed and developing states around the globe, its cross-border network structure - and intends to provide an answer to this distinct threat.32
Following the exposure in 2003 of the transnational nuclear smuggling network set up by Pakistani nuclear scientist A. Q. Khan, the SC passed a further generic counter-terrorism resolution. Again, the resolution had been mainly sponsored by the USA and its adoption was unequivocal; negotiations on the draft, however, lasted several months. Presuming that the danger that terrorists might acquire WMD capabilities through transnational smuggling networks has increased, SC members realized that it was instrumental to obligate all UN member-states to strengthen their domestic capacities to prevent and suppress WMD proliferation to terrorist groups and their non-state associates.33 Modeled after Resolution 1373, Resolution 1540 (2004) therefore declared WMD proliferation per se to be a threat to peace and security and imposed equally far-reaching generic obligations on every UN member-state. All states were to adopt and enforce laws that criminalize the involvement of non-state actors in the production, transfer, and use of WMDs and their means of delivery. Moreover, all states were obliged to establish domestic controls to prevent proliferation.34
Compliance Strategies
The central body responsible for facilitating member-states' compliance with the obligations enjoined on them in conjunction with the sanctions against al-Qaeda, the Taliban, and their associates, is the 1267 Committee, which had already been established in 1999. Acknowledging that the comprehensive obligations required a cooperative approach to implementation, the SC instructed the 1267 Committee to make use of managerial strategies. Since
31 UN Security Council Resolution 1373 (2001).
32 See Ivanov (2001); Negroponte (2002).
33 See statements of member-state representatives, 4950th United Nations Security Council Meeting,
S/PV.4950,22 April 2004.
34 UN Security Council Resolution 1540 (2004).
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many states lacked sufficient capacities to fulfill their obligations, the Committee made an effort to contribute to strengthening such capacities (Stiles & Thayne, 2006: 159). The Committee engaged in assessing capacity gaps and notifying another committee of its appraisals of states' needs, as well as its recommendations on how states might be helped.35 In order to obtain information on states' capacity needs, the 1267 Committee has up until now predominantly drawn on reports prepared by the states themselves; so far, however, only a limited number of states have submitted such reports. Furthermore, a Monitoring Group and a Monitoring Team were created, whose experts traveled to selected countries to investigate what implementation problems states encountered and to develop strategies for overcoming them.36
In addition, the SC and its 1267 Committee endeavored to support implementation efforts by providing guidance on what the obligations required states to do. Many states did not comprehend precisely what the obligations meant and how they could best cooperate with the 1267 Committee and its experts. For instance, many states with no al-Qaeda or Taliban presence on their territory wrongly presumed that certain obligations and requests did not apply to them.37 To address such misunderstandings, the SC adopted follow-up resolutions that specified the obligations and invited state representatives to meet with the Committee.38 Finally, the Committee posted guidance on what information ought to be included in the implementation reports on its website.39
What is more, the 1267 Committee sought to foster implementation by adopting transparent working methods. At first, the 1267 Committee, which was responsible for the administration of a list of the subjects of the sanctions regime, was criticized for not acting transparently when adding names to that list. Besides, the Monitoring Group was reproached for mentioning implementation failures to the media without consulting the respective states beforehand (Graham, 2005:47; Rosand, 2004: 749-755). However, in late 2002, the Committee adopted written guidelines for inclusion on and removal from the list that addressed some of the inadequacies.40 The Monitoring Group was replaced by a Monitoring Team, which cooperated more closely with member-states. Lastly, from 2003 onwards, all implementation reports submitted by member-states were published on the Committee's website.
Strategies endorsed by the Enforcement School did not play an important role in the SC's approach to fostering compliance in terms of the al-Qaeda/ Taliban sanctions regime. Monitoring was mainly restricted to reviewing the
Background conversation with a UN official, New York, 9 May 2006.
United Nations (2006c); see also United Nations (2007).
United Nations (2006c).
United Nations (2007).
United Nations (n.d., a).
United Nations (2007).
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reports states were entreated to hand in to the 1267 Committee (Luck, 2007). Yet, by March 2006,45 states had still not submitted their first report,41 and a number of the reports presented provided no substantial information (Rosand, 2004); moreover, the reports have mainly been used to assess states' domestic capacity gaps rather than to thoroughly monitor their behavior. In addition to reviewing reports, the Committee's experts visited selected countries. However, visits could only be undertaken with the consent of the host country,42 and, likewise, primarily served to assess needs rather than monitor compliance.
Sanctions to punish intentional non-compliance have so far not been considered and are unlikely to be considered in the near future. The 1267 Committee has not even established formal standards for the evaluation of compliance. Nor has it compiled a list of deliberately inactive states that could have been forwarded to the SC for further action, such as naming and shaming or secondary sanctions.43 Thus, even though the 1267 Committee was given 'teeth', and is perceived by member-states as an assertive Sanctions Committee, it has not yet made use of its enforcement powers (Rosand, 2004).
In order to manage member-states' compliance with the comprehensive obligations devised in Resolutions 1373 and 1540, the SC established the Counter-Terrorism Committee (CTC) - subsequently strengthened through the creation of the Counter-Terrorism Committee Executive Directorate (CTED) - and the 1540 Committee. Again, the SC instructed the CTC and the 1540 Committee to focus on managerial compliance strategies, realizing that in the light of the far-reaching obligations established in the respective resolutions states needed implementation support.44 As the lack of capacities turned out to be the most widespread reason for implementation failure, the two Committees focused on assessing states' capacity needs and facilitating capacity-building (Millar & Bremer Maerli, 2005).45 To obtain information on capacity needs, the CTC and the 1540 Committee examined reports that, at least in the case of the CTC, every country submitted; the CTC in addition undertook fact-finding visits to a limited number of countries (Millar et al., 2005; Luck, 2007). Using their mandates to facilitate capacity-building, the Committees strove to act as assistance brokers. They consulted with states that asked for assistance on what assistance was available and on how to request it, and liaised with potential donors such as individual states, international and regional organizations, and various UN bodies (Ward, 2003).46
United Nations (2006c). United Nations (2006a).
Background conversation with a UN official, New York, 11 May 2006.
UN Security Council Resolutions 1377 (2001), 1673 (2006); telephone background conversations with a member-state representative formerly working at the UN, 22 March 2007, and with a former official at the US Mission to the UN, 4 April 2007.
Also, background conversation with a UN official, New York, 8 May 2006.
Also, background conversation with a UN official, New York, 9 May 2006.
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Furthermore, the two Committees posted databases on their websites that provided information on assistance requests, sources of assistance, delivered assistance, and best practices.47 Delays and an excessive reliance on states' reports with respect to needs assessments and the actual provision of assistance have evoked criticism (Millar et al., 2005).48 Yet, despite these inadequacies, the approach to capacity-building taken by the CTC and the 1540 Committee is unprecedented, as the SC has never before made such an extensive effort to facilitate capacity-building as a tool to support states' endeavors to comply with binding obligations.
Besides a shortage of capacities, many countries needed a clear understanding of what exactly the respective resolutions obligated them to do, particularly in terms of legislative requirements. The CTC and the 1540 Committee therefore addressed individual letters to member-states and tried to explain in greater detail which obligations states were to comply with (Rosand, 2003).49 States were invited to meet with staff of the Committees to clarify matters raised in conjunction with their reports and review national plans they were to develop (Stiles, 2006:48).50 The 1540 Committee's staff and associated experts furthermore participated in conferences and workshops to interpret the partly vague language of the resolution.51 Lastly, both Committees established guidelines on what information states were expected to include in their reports.52
Finally, transparent working methods have been a further feature of the CTC's and the 1540 Committee's approach to supporting member-states' implementation efforts. The Committees developed websites containing extensive information on their work and providing access to all reports submitted by states. The Committee Chairmen regularly briefed interested states, international bodies, and the media. Last but not least, a central purpose of the CTC's country visits is to promote transparency and throw light on established working methods (Rosand, 2003: 335; Ward, 2003).53
As was the case with respect to the al-Qaeda/Taliban sanctions regime, the SC hardly considered strategies put forward by the Enforcement School to strengthen member-states' compliance with the obligations enjoined on them under Resolutions 1373 and 1540.54 The CTC and the 1540 Committee equally relied heavily on reviewing states' reports to learn about the measures they implement. The few on-site visits conducted up to now with the
47 The websites of the CTC and the 1540 Committee can be accessed at http://www.un.org/sc/ctc/ and
http:/ /disarmament2.un.org/Committeel540/index.html, respectively (accessed 20 March 2007).
48 Also, background conversation with a 1540 Committee-affiliated Expert, New York, 9 May 2006.
49 See also United Nations (2006d).
50 See also United Nations (2006b).
51 United Nations (2005).
52 United Nations (2002); United Nations (n.d., b).
53 See also United Nations (n.d., c); United Nations (n.d., d).
54 Telephone background conversation with a member-state representative formerly working at the UN, 21
March 2007.
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consent of the host countries provided some insights into states' implementation efforts. However, in this case, too, such efforts primarily served to find out about capacity needs rather than to monitor implementation (Ruperez, 2006:16; Millar & Bremer Maerli, 2005).55
Sanctions against willfully non-compliant states have not yet been contemplated, and are unlikely to be so in the near future. As yet, both Committees have tried to avoid being perceived as Sanctions Committees, as they have been anxious that a confrontative approach might undermine their confidence-building efforts. Moreover, there is no consensus among Security Council members as to whether punishment of intentional non-compliance should be contemplated at all.56 Thus, like the 1267 Committee, neither the CTC nor the 1540 Committee have agreed on formal compliance standards, and much less recommended that the SC impose sanctions against deliberately non-compliant states (Millar et al., 2005; Millar & Bremer Maerli, 2005).
Conclusion
The SC adapted to the spread of transnational terrorism and underwent a learning process in the sense that it showed an ability to adjust its practices to a new environment. Addressing state-sponsored terrorism, the SC adopted sanctions against states and state-like actors that it suspected of sponsoring terrorism. The binding obligations imposed on UN member-states were normally not very far-reaching. In adapting to transnational terrorism, the SC applied sanctions against terrorists and their non-state associates. Moreover, it imposed generic obligations in an endeavor to strengthen states' capacities to prevent and suppress terrorism per se. In particular the generic obligations necessitated relatively far-ranging policy changes on the part of the UN member-states.
Adaptation in terms of applying sanctions against non-state actors as opposed to state-actors is a novel, even though quite obvious, move. After the overthrow of the Taliban regime in Afghanistan, the SC had little choice other than to impose sanctions against al-Qaeda, the remaining Taliban units, and their non-state associates if it wanted to uphold its sanctions regime. It is also quite understandable that the SC was able to adopt comprehensive sanctions against al-Qaeda and the Taliban, because no state intended to block such sanctions.57 Adaptation in terms of imposing generic counter-terrorism obligations, however, is highly innovative. Resolution 1373 is the
55 See also United Nations (n.d., e).
56 Background conversations with UN officials, New York, 8 and 9 May 2006.
57 Telephone background conversation with a member-state representative formerly working at the UN, 22
March 2007.
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first SC resolution of a quasi-legislative character that requires all member-states to change their domestic legislation as a means to prevent or suppress an abstract security threat. It is even argued that, in so doing, the SC overstepped its competencies, as it is - as some contend - only authorized to determine specific threats to international peace and security (Szasz, 2002).
The SC also adapted in terms of the compliance strategies it applied. To foster states' efforts to implement the obligations enjoined on them in the context of its campaign against state-sponsored terrorism, the SC - commensurate with the approach to implementation the SC normally took at that time - remained rather passive. In the framework of its campaign against transnational terrorism, the SC adopted a far more active approach to encourage compliance. While strategies recommended by the Enforcement School continued to be neglected, the SC primarily focused on strategies recommended by the Management School to support implementation.
The SC's endeavors to support states' implementation efforts and 'manage' compliance with respect to the al-Qaeda/Taliban sanctions regime and the generic counter-terrorism obligations are impressive and unprecedented. Never before has the SC gone to such lengths to facilitate implementation. The SC has clearly acknowledged that most states needed help to meet the extensive obligations it had inflicted upon them.58
In a nutshell, then, the SC adapted to the spread of transnational terrorism by demanding more from states, intervening deeper into their domestic realm, and at the same time offering more support. Even though the SC member-states do not literally refer to the term 'transnational terrorism', they appear to have realized that contemporary terrorism increasingly features transnational traits that require a reorientation of the SC's approach to terrorism. In a Council meeting on 12 September 2001, for instance, a member-state representative explicitly pointed out that the specific context in which today's terrorists operate necessitates new strategies.59 Igor S. Ivanov60 and John D. Negroponte,61 moreover, have in the aftermath of the adoption of Resolution 1373 frequently emphasized that contemporary terrorism's network-like character, global outreach, and fluid territorial affiliation require every state to strengthen its domestic counter-terrorism capacities.62 Background conversations with member-state representatives working at the UN equally suggest that the modification of the SC's approach to terrorism is a function of the appraisal that the specific features of contemporary terrorism - in particular its global outreach, lesser reliance on direct state support,
58 Telephone background conversations with member-state representatives formerly working at the UN, 21
and 22 March 2007.
59 Mr Kuchinsky (Ukraine), 4370thUnited Nations Security Council Meeting, S/PV.4370,12 September 2001,
pp. 3^
60 Russian Foreign Secretary (1998-2004).
61 Permanent Representative of the USA to the UN (2001-04).
62 See footnote 32.
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and greater destructive potential - demanded such a modification.63 Despite the gradual decline in incidents of state-sponsored terrorism (Enders & Sandler, 2005), SC members still regard state-sponsored terrorism as a serious security threat.64 Yet, they appear to have realized that a particularly dangerous, potentially global type of terrorism has gained in importance, one that depends to a far lesser extent on direct state support and therefore demands a specific response.65
Implementation of the resolutions adopted to respond to the specific features of contemporary terrorism, however, has so far only made slow progress. The SC and its Committees appear in some respects overstrained in terms of both supporting implementation and deterring deliberate noncompliance. Demand for capacity-building, for instance, outweighs available support (Millar et al., 2005). What is more, the SC does not possess a strategy for addressing states that lack the political will to comply (Luck, 2007). Yet, despite slow implementation, the approach the SC has taken to respond to transnational terrorism points into the right direction. Particularly the generic counter-terrorism obligations would - if effectively implemented - make a huge difference (see, for example, Crail, 2006). Moreover, given the depth of obligations incumbent on all states and the need to clarify ambiguities and build confidence, managerial compliance strategies are indeed essential. Hence, notwithstanding the slow progress on implementation, its potential justifies regarding the SC's response to transnational terrorism at this early stage as adaptation.
The way the SC responds to transnational terrorism is not likely to be a precursor of a future trend of SC governance.66 It is barely conceivable that the SC could have adopted such intrusive resolutions as Resolutions 1373 and 1540, and committed itself in such a way to facilitating capacity-building, had not the USA been among the main sponsors of the resolutions. Moreover, it is most likely that that the USA was only able to find support for such intrusive resolutions in the aftermath of the 9/11 attacks and the exposure of a sophisticated WMD smuggling network. Nevertheless, although the SC's adaptation to transnational terrorism so far constitutes an exception rather than current SC practice, it can still be seen as part of a broader trend in the evolution of governance patterns in what has been termed the post-national constellation (Habermas, 2001; Zangl & Zürn, 2003:153-164). The increasing infringement into states' sovereignty rights, as well as a greater focus on managerial strategies to foster compliance with obligations imposed by international institutions, can also be observed in other issue-areas. The
63 For example, telephone background conversations with a member-state representative working at the
UN, 29 March 2007, and with Vladimir Salov, Counselor at the Russian Mission to the UN, 3 April 2007.
64 Telephone background conversation with member-state representative formerly working at the UN, 21
March 2007.
65 See footnote 63.
66 Telephone background conversation with a former official at the US Mission to the UN, 4 April 2007.
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International Labour Organization, for example, has an impact on behind-the-border policies by setting minimum standards of basic labor rights, and at the same time provides technical assistance to member-states. The Kyoto Protocol commits signatory states to individual, legally binding targets to restrict their greenhouse-gas emissions and provides for capacity-building to facilitate compliance. In Europe, finally, the European Court on Human Rights is authorized to impose far-reaching binding obligations on contracting states, while a further Council of Europe institution, the Committee of Ministers, tries to endorse the execution of the Court's judgments by engaging states in constructive dialogues. The adaptation of the UN Security Council to the transformation of terrorism can thus exemplify how the transnationalization of problems facilitates a gradual shift of governance to international institutions, which to an increasing degree intervene in the domestic realm of states.
* Monika Heupel is a Transatlantic Post-Doctoral Fellow at the German Institute for International and Security Affairs (SWP), Berlin. E-mail: monika.heupel@swp-berlin.org. Research for this article was made possible through a lapan Society for the Promotion of Science Postdoctoral Fellowship. The author thanks her interview partners for their valuable information and the referees for their helpful comments. The article has also benefited from comments raised during presentations at the United Nations University, the University of Bremen, and the 2007 Convention of the International Studies Association.
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