Fry: The Swindle of Fragmented Criminalization

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THE SWINDLE OF FRAGMENTED

CRIMINALIZATION:CONTINUING
PIECEMEAL RESPONSES TO
INTERNATIONAL TERRORISM AND
AL QAEDA
JAMES D. FRY *
Abstract: By comparing the counter-terrorism conventions and Security

Council resolutions from before and after the September 11 attacks, this
Article challenges the relatively common notion that the criminalization
effort to combat international terrorism, including Al Qaeda, significantly
has improved since the September 11 attacks.On the contrary, whereas the
instruments before the September 11 attacks required states to criminalize
specific acts normally associated with terrorism without having to define
terrorism or terrorist acts, states now are required to define these terms
for themselves, thus further fragmenting the international approach to
combating this scourge. This Article calls for a renewed commitment to
improving that approach.
INTRODUCTION ..........................................................................................379
I. Criminalization Before September 11 .........................................381
A. Conventions Addressing Certain Acts Commonly
Associated with Terrorism.................................................382
1. The Hague Convention ..................................................383
2. Montreal Convention and its Protocol ...........................384
3. Internationally Protected Persons Convention...............385
4. Hostages Convention .....................................................386
* Assistant Professor of Law and Deputy Director of Mixed Degrees, University of Hong
Kong Faculty of Law. The author thanks Andrea Bianchi, Andrew Clapham, John Dugard,
David Fry, David Sylvan, Simon Young, and anonymous reviewers for their encouragement
and comments on earlier drafts of this Article. This Article has been made possible, in part,
by a generous Research Output Prize from the University of Hong Kong. This Article is
dedicated to those who lost their lives and loved ones in the tragic September 11 attacks.
377
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378 NEW ENGLAND LAW REVIEW [Vol. 43:377
5. Maritime Convention and its Protocol...........................386

6. Bombings Convention ...................................................388
7. Financing Convention....................................................389
8. Plastic Explosives Convention.......................................390
9. Tokyo Convention and Nuclear Materials
Convention ..................................................................390
B. A Critique of the Commentary Concerning these
Conventions .......................................................................391
1. Some Conventions Require Criminalization .................391
2. Virtually None of the Operative Paragraphs Mention
Terrorism.....................................................................392
3. The Conventions Clearly Define the Covered
Activities .....................................................................393
4. The Conventions Direct States to Deal with Acts
Associated with Terrorism ..........................................394
C. Pre-September 11 Resolutions............................................394
1. Status of the Operative Phrase Calls upon States.......394
2. Security Council Resolutions Requiring
Criminalization............................................................396
a. Resolution 1267.......................................................396
b. Resolution 1269 ......................................................398
c. Resolution 1333.......................................................398
D. Conclusion for Part I...........................................................399
II. Criminalization After September 11 ..........................................400
A. The Nuclear Terrorism Convention: A Post-September
11 Counter-Terrorism Convention.....................................401
B. Security Council Involvement in Counter-Terrorism .........403
1. Security Council Resolutions after the September 11
Attacks.........................................................................404
a. Resolutions 1373 and 1390 .....................................405
b. Resolution 1455 ......................................................407
c. Resolution 1526.......................................................407
d. Resolution 1624 ......................................................408
2. The Nature of the Resolution 1373 Regime ..................409
a. Innovation or Stagnation?........................................409
b. Deterioration: The Failure to Define Key Terms ....412
c. The Counter-Terrorism Committee: A Pseudo-
Innovation .............................................................414
C. Two General Observations on the Criminalization of
International Terrorism ......................................................420
1. Terrorists are Criminals .................................................420
2. No Necessary Link Between Domestic Definitions
and International Law..................................................421
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2009] FRAGMENTED CRIMINALIZATION 379
III. Some State Practice on Criminalizing Al Qaeda ......................422

A. General Observations Concerning Terrorism as a
Separate Crime...................................................................422
B. Criminalization of Al Qaeda in Particular ..........................425
1. Switzerland ....................................................................426
2. Australia.........................................................................427
3. United Kingdom ............................................................428
4. United States..................................................................428
5. Canada ...........................................................................429
6. Israel ..............................................................................430
7. Cook Islands ..................................................................431
C. Preempting Criticism ..........................................................431
CONCLUSION ..............................................................................................433
Progress and reaction have both turned out to be swindles. Seemingly, there
is nothing left but quietismrobbing reality of its terrors by simply
submitting to it.
George Orwell, Inside the Whale, Part III (1940)
INTRODUCTION
The September 11terrorist attacks on the World Trade Center, the
Pentagon, American Airlines Flights 11 and 77, and United Airlines Flights
175 and 93 all intensified the international communitys abhorrence of
international terrorism. 1 Yet this did not translate into a dramatic change in
the approach to combating terrorism in terms of criminalization. 2 While the
attacks helped the international community refocus its efforts against
terrorism and led to the establishment of a so-called hub for collecting
information about states efforts to combat terrorismthe Counter-
Terrorism Committee (CTC)the preferred approach remained a
fragmented one that relies essentially on criminalization at the state level.
The fragmentation only has increased after September 11 because, whereas
before September 11 states merely were required to criminalize specific
acts normally associated with terrorism without having to define
1. See Reuven Young, Defining Terrorism: The Evolution of Terrorism as a Legal

Concept in International Law and Its Influence on Definitions in Domestic Legislation, 29
B.C. INTL & COMP. L. REV. 23, 26 (2006).
2. By criminalization, this Article means the adoption of legislation that makes
something criminally unlawfulthe common meaning of the term. This Article does not
look at the execution of that legislation or at non-criminal legislation, both of which
generally fall outside of the category of criminalization.
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terrorism or terrorist acts, states now are required to define these terms,
with no substantive guidance coming from the United Nations in fulfilling
their international obligations to combat terrorism. As a result, this Article
argues against the relatively common notion that the international
criminalization effort to combat international terrorism, including Al
Qaeda, significantly has improved since the September 11 attacks, 3 and
calls for a renewed commitment to improving the international approach.
This Article is divided into three parts. Part I analyzes the types of
obligations arising from the terrorism-related conventions and Security
Council resolutions that were adopted before the September 11 attacks. 4
Such an analysis is a crucial first step in determining whether the approach
significantly has changed as a result of the attacks. While not all of these
instruments require criminalization, some of them require some form of
criminalization of support for Osama bin Laden and his associates (which
is interpreted here as being Al Qaeda)namely, Resolutions 1267, 1269
and 1333. Part II then focuses on the conventions and resolutions after the
September 11 attacks that apply to terrorism and Al Qaedaespecially
Resolutions 1373 and 1390. 5 A comparison of these pre-September 11
3. Just so that it is perfectly clear to the reader, Al Qaeda is the name of the group of
Arab Muslim fighters, led by Osama bin Laden, that originally formed to oppose the
USSRs invasion of Afghanistan in the 1980s. See Mark A. Drumbl, Victimhood in Our
Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International
Legal Order, 81 N.C. L. REV. 1, 88-89 (2002); Juan R. Torruella, On the Slippery Slopes of
Afghanistan: Military Commissions and the Exercise of Presidential Power, 4 U. PA. J.
CONST. L. 648, 651, n.12 (2002). After the USSRs withdrawal from Afghanistan in 1989,
the group turned its attention to fighting other so-called Islamic causes, particularly the U.S.
presence in Saudi Arabia. See, e.g., Lloyd C. Anderson, The Detention Trilogy: Striking the
Proper Balance Between National Security and Individual Liberty in an Era of
Unconventional Warfare, 27 WHITTIER L. REV. 217, 227-28 (2005). Among the atrocious
terrorist attacks that have been attributed to Al Qaeda are the 1993 World Trade Center
bombings, the 1996 Khobar Towers bombing in Saudi Arabia, the 1998 U.S. Embassy
bombings in Kenya and Tanzania, the 2000 attack on the USS Cole, the September 11
attacks, the 2002 Tunisian synagogue attack, the 2002 attacks in Indonesia and Kenya, the
2003 attacks in Morocco, Turkey, and Saudi Arabia, the 2004 Madrid bombings, and the
2005 London bombings. See Mary Glendinning, Timeline: Al-Qaida Attacks on Western
Targets, NATL PUB. RADIO, July 7, 2005, http://www.npr.org/templates/story/story.
php?storyId=4733944. Since 2005, Al Qaeda also has claimed responsibility for the 2007
Algiers bombings of two government buildings there and the 2008 attack on the Danish
Embassy in Pakistan. See Suicide Bombing Kills 14 in an Algerian Town, N.Y. TIMES, Sept.
7, 2007, at A3, available at 2007 WLNR 17467072; Pir Zubair Shah & Alan Cowell, Police
Say They Foiled Bomb Plot in Pakistan, N.Y. TIMES, June 7, 2008, at A6, available at 2008
WLNR 10762868.
4. See infra Part I.A, C.
5. See infra Part II.B.1.
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instruments with post-September 11 ones indicates how the obligation on

states to criminalize Al Qaeda in particular and international terrorism in
general has not changed radically with the September 11 attacks. However,
the obligation admittedly has been expressed in clearer terms, 6 which is the
focus of Part III. 7 Even when states perceive a new obligation, they are
required to choose their own definition of terrorism in their own
legislation, 8 which leads to even greater disharmony in the so-called
international effort to combat terrorism. 9 Benjamin Franklins words to
John Hancock upon signing the Declaration of Independence We must
all hang together or assuredly we shall all hang separatelyare pertinent
to the present situation where the magnitude of the threat from terrorism
merits a more unified response from the international community. 10
DISCUSSION
I. Criminalization Before September 11

In order to compare the pre- and post-September 11 approaches to
international terrorism, this Part lays out the ways in which certain
conventions and Security Council resolutions require, or appear to require,
state parties to criminalize international terrorism in general and Al Qaeda
in particular. Section A of this Part looks at the international obligations on
states to criminalize international terrorism arising from the various
6. By criminalize Al Qaeda or criminalization of Al Qaeda, this Article focuses on

the criminalization of membership in Al Qaeda through legislation or accompanying
regulations, and not merely the criminalization of acts that support Al Qaeda, such as
fundraising and recruitment efforts, or acts of Al Qaeda members. This former category is
important because it is the closest to criminalizing an organization that one can get,
assuming organizations themselves cannot be criminalized as they are legal fictions that
cannot be imprisoned.
7. See infra Part III.A-B.
8. But see Andrea Bianchi, Security Councils Anti-terror Resolutions and their
Implementation by Member States: An Overview, 4 J. INTL CRIM. JUST. 1044, 1050 (2006)
(asserting that it surely was not the intention of the SC at the time of the adoption of Res.
1373 to give states a blank cheque to fight terrorism according to their own definitions[,]
though he does not specify which definition the Security Council must have intended for
states to adopt, if not their own, when the Security Council used the term without defining it
in the post-September 11 resolutions).
9. Such disharmony will create significant problems for international cooperation,
especially when it comes to extradition and its requirement of double criminality. However,
a discussion of the problems arising from disharmony in combating terrorism on the
international level falls outside the scope of this Article.
10. Benjamin Franklin, Remarks at the signing of the Declaration of Independence (July
4, 1776), in JOHN BARTLETT, FAMILIAR QUOTATIONS 348 (14th ed. 1968).
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conventions adopted before September 11. 11 Not surprisingly, Al Qaeda is

not named in any of them, largely because that name for the group had not
come into usage until 2001. 12 Surprisingly, terrorism itself is not even
mentioned in the operative paragraphs of these conventions, except for a
few exceptions mentioned below. 13 Instead, these conventions focus on
criminalizing specific acts often associated with international terrorism.
Section B then analyzes some of the pre-September 11 Security Council
resolutions that can be interpreted as requiring criminalization of some
aspects of Al Qaeda. 14 Together, these two parts constitute the international
obligations to criminalize international terrorism in general and Al Qaeda
in particular prior to the September 11 attacks.
A. Conventions Addressing Certain Acts Commonly Associated

with Terrorism
In all, nine, and arguably ten, of the twelve conventions that deal with
certain acts of international terrorism before September 11 require some
form of criminalization by the state parties. 15 Interestingly, commentators
often mischaracterize these conventions. A critique of these comments and
this authors own observations follow a textual analysis of these
conventions. 16 Before doing so, however, a word must be said about what
constitutes a requirement to criminalize.
In general, criminal law prohibits certain acts and prescribes
parameters for punishing persons convicted of committing such acts with
measures including imprisonment, often with the purpose of incapacitation
and deterrence. 17 A resolution or convention requires criminalization if it
calls for legislation that defines both the prohibited act and prescribes
punishment that includes imprisonment. It is noted that there are non-
criminal penalties and punishments, 18 even though these terms often are
11. See infra Part I.A.

12. See ARNAUD BLIN ET AL., THE HISTORY OF TERRORISM: FROM ANTIQUITY TO AL
QUEDA 314 (2007) (explaining that Osama Bin Laden never uttered the name prior to
September 11).
13. See infra Part I.B.2.
14. See infra Part I.B. Please recall that UN Charter Article 25 requires UN members to
accept and carry out the decisions of the Security Council in accordance with the present
Charter. U.N. Charter art. 25.
15. See infra Part I.A.
16. See infra Part I.B.
17. See Robert F. Schopp, Verdicts of Conscience: Nullification and Necessity as Jury
Responses to Crimes of Conscience, 69 S. CAL. L. REV. 2039, 2074 (1996) (discussing
criminal justice systems in general).
18. See, e.g., Council Framework Decision 2002/475/JHA, art. 8, 2002 O.J. (L 164) 3, 6
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used within the criminal context. Similarly, while criminal law generally is
seen as prohibiting certain activities, 19 bodies of law other than criminal
law also can be seen as creating prohibitions, 20 so a resolution that requires
prohibition of an action does not necessary require criminalization of that
action.Therefore, while a requirement to prohibit or punish certain acts
with penalties may be read to require criminalization by some states, it is
not necessarily required under such a provision. In other words, for there to
be a requirement to criminalize certain activities, it would appear that the
resolution or convention has to expressly require the creation of criminal
laws. The rest of this Section looks at whether the pre-September 11
counter-terrorism conventions oblige states to criminalize certain acts
commonly associated with international terrorism.
1. The Hague Convention

Starting with the Convention for the Suppression of Unlawful Seizure
of Aircraft, otherwise known as the Hague Convention, 21 Article 2
provides: Each Contracting State undertakes to make the offence
punishable by severe penalties. 22 Article 1 contains the definition of the
offence being when anybody on board a flying aircraft:
(a) unlawfully, by force or threat thereof, or by any other form of
intimidation, seizes, or exercises control of, that aircraft, or
attempts to perform any such act, or
(b) is an accomplice of a person who performs or attempts to
perform any such act commits an offence (hereinafter referred to
as the offence). 23
(EC) (providing a list of some non-criminal penalties).

19. See John C. Coffee, Jr., Does Unlawful Mean Criminal?: Reflections on the
Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 194 (1991)
(Characteristically, tort law prices, while criminal law prohibits.); SANFORD H. KADISH &
STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 204
(6th ed. 1995). Indeed, the maxim nullum crimen sine lege, or no crime without a law to
prohibit it, shows how prohibitions are central to criminal law, by definition, though this
does not mean that only criminal law prohibits.
20. See, e.g., Coffee, supra note 19, at 194 n.4 (acknowledging that tort law, with its
punitive damages, clearly is intended to prohibit, and asserting that not only criminal law
prohibits).
21. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860
U.N.T.S. 105 (entered into force Oct. 14, 1971) [hereinafter Seizure of Aircraft
Convention].
22. Id.
23. Id.
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As explained in the Introduction to this Section, whether Article 2 requires

criminalization depends on ones definition of punishable and
penalties. This Article takes the view that such terms likely do not
constitute such a requirement, as non-criminal penalties and punishments
can exist.
2. Montreal Convention and its Protocol

The next convention is the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, otherwise known as
the Montreal Convention, which states in Article 3: Each Contracting
State undertakes to make the offences mentioned in Article 1 punishable by
severe penalties. 24 The relevant language of this provision is not unlike
that of the Hague Convention Article 2 quoted above. 25 Article 1 lays out
the specific acts that constitute an offense, when the suspect unlawfully and
intentionally:
(a) performs an act of violence against a person on board an
aircraft in flight if that act is likely to endanger the safety of that
aircraft; or
(b) destroys an aircraft in service or causes damage to such an
aircraft which renders it incapable of flight or which is likely to
endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in service, by any
means whatsoever, a device or substance which is likely to
destroy that aircraft, or to cause damage to it which renders it
incapable of flight, or to cause damage to it which is likely to
endanger its safety in flight; or
(d) destroys or damages air navigation facilities or interferes with
their operation, if any such act is likely to endanger the safety of
aircraft in flight; or
(e) communications information which he knows to be false,
thereby endangering the safety of an aircraft in flight. 26
Article 2 indicates that persons who attempt to commit any of these acts
and accomplices to such acts or attempts fall within the definition of having
24. Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation, art. 3, Sept. 23, 1971, 974 U.N.T.S. 178 (entered into force Jan. 26, 1973)
[hereinafter Civil Aviation Convention].
25. See id.; Seizure of Aircraft Convention, supra note 21.
26. Civil Aviation Convention, supra note 24.
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committed an offense. 27 Article 2 of the Protocol to the Montreal

Convention, otherwise known as the Montreal Airports Protocol, amended
Article 1 of the Montreal Convention by broadening the definition of
offense to include acts against persons and certain aircraft at an airport. 28
The Protocol does not change the requirement in Article 3 of the Montreal
Convention, which, as with the Hague Convention mentioned above, does
not appear to require criminalization for the reasons mentioned there.
3. Internationally Protected Persons Convention

Article 2(2) of the United Nations Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persons, Including
Diplomatic Agents, otherwise known as the Internationally Protected
Persons Convention, provides: Each State Party shall make these crimes
punishable by appropriate penalties which take into account their grave
nature. 29 Article 2(1) provides the specific crimes as the intentional
commission of:
(a) A murder, kidnapping or other attack upon the person or
liberty of an internationally protected person;
(b) A violent attack upon the official premises, the private
accommodation or the means of transport of an internationally
protected person likely to endanger his person or liberty;
(c) A threat to commit any such attack;
(d) An attempt to commit any such attack; and
(e) An act constituting participation as an accomplice in any such
attack shall be made by each State Party a crime under its
internal law. 30
With these two phrases using the words crime and crimes, the
Internationally Protected Persons Convention goes a step further than its
27. Id.
28. See Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, art. II, Feb. 24, 1988, 1589 U.N.T.S. 474 (entered into force
Aug. 6, 1989).
29. United Nations Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, Including Diplomatic Agents, G.A. Res. 3166 (XXVIII),
art. 2(2), Dec. 14, 1973, 1035 U.N.T.S. 167 (entered into force Feb. 20, 1977) (emphasis
added), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_4_
1973.pdf.
30. Id. art. 2(1) (emphasis added).
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predecessors by making explicit the requirement for states to criminalize

the relevant offenses in their domestic laws. However, the predecessors
might also be read to require criminalization, as already noted.
4. Hostages Convention
The International Convention Against the Taking of Hostages,
otherwise known as the Hostages Convention, provides in Article 2: Each
State Party shall make the offences set forth in article 1 punishable by
appropriate penalties which take into account the grave nature of those
offences. 31 Article 1(1) provides the specific offense to be made
punishable by states:
Any person who seizes or detains and threatens to kill, to injure
or to continue to detain another person (hereinafter referred to as
the hostage) in order to compel a third party, namely, a State,
an international intergovernmental organization, a natural or
juridical person, or a group of persons, to do or abstain from
doing any act as an explicit or implicit condition for the release
of the hostage commits the offence of taking of hostages
(hostage-taking) within the meaning of this Convention. 32
Article 1(2) expands the punishable offenses to cover attempts and
accomplices to the acts or attempts, just as Article 2 of the Hague
Convention, though the Hostages Convention does not appear to require
criminalization. 33
5. Maritime Convention and its Protocol

The Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, otherwise known as the Maritime
Convention, provides in Article 5: Each State Party shall make the
offences set forth in article 3 punishable by appropriate penalties which
take into account the grave nature of those offences. 34 Article 3(1)
provides the specific offenses to be made punishable by states where a
person unlawfully and intentionally:
31. International Convention Against the Taking of Hostages, art. 2, Dec. 17, 1979,
1316 U.N.T.S. 205, available at http://untreaty.un.org/English/Terrorism/Conv5.pdf
[hereinafter Hostages Convention].
32. Id. art. 1(1).
33. Id. art. 1(2); see supra Part I.A.1.
34. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation art. 5, Mar. 10, 1988, 1678 U.N.T.S. 222 (entered into force Mar. 1, 1992),
available at http://untreaty.un.org/unts/120001_144071/5/2/00003522.pdf [hereinafter
Maritime Convention].
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(a) seizes or exercises control over a ship by force or threat

thereof or any other form of intimidation; or
(b) performs an act of violence against a person on board a ship
if that act is likely to endanger the safe navigation of that ship; or
(c) destroys a ship or causes damage to a ship or to its cargo
which is likely to endanger the safe navigation of that ship; or
(d) places or causes to be placed on a ship, by any means
whatsoever, a device or substance which is likely to destroy that
ship, or cause damage to that ship or its cargo which endangers
or is likely to endanger the safe navigation of that ship; or
(e) destroys or seriously damages maritime navigational facilities
or seriously interferes with their operation, if any such act is
likely to endanger the safe navigation of a ship; or
(f) communicates information which he knows to be false,
thereby endangering the safe navigation of a ship; or
(g) injures or kills any person, in connection with the
commission or the attempted commission of any of the offences
set forth in subparagraphs (a) to (f). 35
Article 3(2) again expands the punishable offenses to cover attempts and
accomplices to the acts or attempts. 36 The Protocol to the Maritime
Conventionor the Protocol for the Suppression of Unlawful Acts Against
the Safety of Fixed Platforms Located on the Continental Shelfwas done
and entered into force on the same days as the Maritime Convention. 37 The
Protocols Article 2 expands the offenses that are to be punishable under
Maritime Convention Article 5 by essentially repeating Maritime
Convention Article 3(1)(a) to (d), but replacing ship and references to it
with fixed platform. 38 The Protocol leaves out an equivalent of the
Convention Article 3(1)(e) and (f), but repeats verbatim Maritime
Convention Article 3(1)(g) in Protocol Article 2(1)(e), though adjusts the
reference to the subparagraphs at the end. 39 Similar to Maritime
35. Id. art. 3(1).

36. Id. art. 3(2).
37. See Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf, Mar. 10, 1988, 1678 U.N.T.S. 304 (entered into
force Mar. 1, 1992), available at http://untreaty.un.org/English/Terrorism/Conv9.pdf
[hereinafter Fixed Platforms Protocol]; Maritime Convention, supra note 34.
38. See Fixed Platforms Protocol, supra note 37, art. 2(1); Maritime Convention, supra
note 34, art. 3(1).
39. See Fixed Platforms Protocol, supra note 37, art. 2(1); Maritime Convention, supra
note 34, art. 3(1).
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Convention Article 3(2), Protocol Article 2(2) expands the punishable

offenses to cover attempts and abettors, and accomplices to the acts or
attempts, but goes a step further by covering threats aimed at compelling a
physical or juridical person to do or refrain from doing any act. 40 Again,
neither is viewed here as containing an express requirement to criminalize
these acts.
6. Bombings Convention
The International Convention for the Suppression of Terrorist
Bombings, otherwise known as the Bombings Convention, provides in
Article 4:
Each State Party shall adopt such measures as may be necessary:
(a) To establish as criminal offences under its domestic law the
offences set forth in article 2 of this Convention; (b) To make
those offences punishable by appropriate penalties which take
into account the grave nature of those offenses. 41
Article 2(1) provides the specific crimes that are being made punishable:
1. Any person commits an offence within the meaning of this
Convention if that person unlawfully and intentionally delivers,
places, discharges or detonates an explosive or other lethal
device in, into or against a place of public use, a State or
government facility, a public transportation system or an
infrastructure facility:
a. With the intent to cause death or serious bodily injury; or
b. With the intent to cause extensive destruction of such a
place, facility or system, where such destruction results in or
42
is likely to result in major economic loss.
Article 2(2) and (3) again expands the punishable offenses to cover
attempts and accomplices and abettors to the acts or attempts. 43 Article 5
goes on to require states to:
adopt such measures as may be necessary, including, where
appropriate, domestic legislation, to ensure that criminal acts
within the scope of this Convention . . . are under no
40. Fixed Platforms Protocol, supra note 37, art. 2(2).

41. International Convention for the Suppression of Terrorist Bombings, G.A. Res.
52/164, at 251, U.N. Doc. A/RES/52/164 (Dec. 15, 1997), reprinted in 37 I.L.M. 249 (1998)
(emphasis added) [hereinafter Bombings Convention].
42. Id.
43. See id.
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circumstances justifiable by considerations of a political,

philosophical, ideological, racial, ethnic, religious or other
similar nature and are punished by penalties consistent with their
grave nature. 44
However, the fundamental obligation to criminalize the substance of the
Bombings Convention arises out of Article 4. 45
7. Financing Convention
Finally, the International Convention for the Suppression of the
Financing of Terrorism, otherwise known as the Financing Convention,
provides in Article 4: Each State Party shall adopt such measures as may
be necessary: (a) To establish as criminal offences under its domestic law
the offences set forth in article 2; (b) To make those offences punishable by
appropriate penalties which take into account the grave nature of the
offences. 46 Article 2(1) provides the specific acts that state parties are to
criminalize:
Any person commits an offence within the meaning of this
Convention if that person by any means, directly or indirectly,
unlawfully and willfully, provides or collects funds with the
intention that they should be used or in the knowledge that they
are to be used, in full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope of
and as defined in one of the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily
injury to a civilian, or to any other person not taking an active
part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a
population, or to compel a Government or an international
47
organization to do or to abstain from doing any act.
Article 2(3) expands this offense to instances where the funds are not
actually used to carry out an offense. 48 Likewise, Article 2(4) and (5)
expand the offense to attempts, and also cover accomplices and abettors to
44. Id.
45. See id.
46. International Convention for the Suppression of the Financing of Terrorism, G.A.
Res. 54/109, at 4, U.N. Doc. A/RES/54/109 (Dec. 9, 1999) (emphasis added) [hereinafter
Financing Convention].
47. Id. at 3.
48. See id. at 4.
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the offense or attempted offense. 49 It must be noted that, while this

Convention entered into force after September 11, it was completed and
open for signature on December 9, 1999, well before September 11,
2001. 50 Therefore, this Convention is included with the pre-September 11
discussion, though it could be included in the post-September 11 discussion
as well if one were willing to overlook the fact that conventions typically
cannot be amended at the level-two ratification stage. 51
8. Plastic Explosives Convention

It is unclear whether the Convention on the Marking of Plastic
Explosives for the Purpose of Detection, otherwise known as the Plastic
Explosives Convention, requires state parties to criminalize certain acts, as
Article 2 requires: Each State Party shall take the necessary and effective
measures to prohibit and prevent the manufacture in its territory of
unmarked explosives. 52 Whether this requires adoption of criminal
legislation is open for debate, though it is less debatable than those
conventions that use the words punishable and penalties. 53 The fact
that it mentions only prohibit and prevent suggests that the Plastic
Explosives Convention falls far short of requiring criminalization. 54
However, the opposite conclusion would not be illogical, and is, therefore,
not dismissed entirely.
9. Tokyo Convention and Nuclear Materials Convention

The other two relevant conventions stop short of requiring state
parties to criminalize certain acts. The Convention on Offences and Certain
Other Acts Committed on Board Aircraft, otherwise known as the Tokyo
Convention, provides in Article 3(3): This Convention does not exclude
any criminal jurisdiction exercised in accordance with national law. 55 In
addition, Article 3(2) requires: Each Contracting State shall take such
49. See id.

50. See U.S. Dept of State, International Conventions and Protocols on Terrorism,
http://www.state.gov/s/ct/rls/crt/2006/83238.htm (last visited Nov. 21, 2009).
51. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level
Games, 42 INTL ORG. 427, 437 (1988).
52. Convention on the Marking of Plastic Explosives for the Purpose of Detection, Mar.
1, 1991, 2122 U.N.T.S. 359 (entered into force June 21, 1998), available at
http://www.un.org/chinese/terrorism/1991E.pdf [hereinafter Plastic Explosives Convention].
53. See Financing Convention, supra note 46, at 4.
54. See Plastic Explosives Convention, supra note 52, art. III.
55. Convention on Offences and Certain Other Acts Committed on Board Aircraft art. 3,
Sept. 14, 1963, 704 U.N.T.S. 219, (entered into force Dec. 4, 1969) available at
http://www.icao.int/icao/en/leb/Tokyo.pdf [hereinafter Tokyo Convention].
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measures as may be necessary to establish its jurisdiction as the State of

registration over offences committed on board aircraft registered in such
State. 56 However, these provisions do not constitute a requirement to
criminalize certain acts. Likewise, Article 3 of the Convention on the
Physical Protection of Nuclear Material, otherwise known as the Nuclear
Materials Convention, starts with: Each State Party shall take appropriate
steps within the framework of its national law and consistent with
international law . . . . 57 This wording indicates that no new additions to
national law, criminal or otherwise, are expressly required under this
Convention, despite the assertion of a certain commentator to the
contrary. 58
B. A Critique of the Commentary Concerning these Conventions

Four observations need to be made here to emphasize certain points
about the pre-September 11 approach to criminalizing terrorism contained
in these conventions. Each observation can be linked to a faulty view of
these conventions provided by certain commentators.
1. Some Conventions Require Criminalization

First, and most obvious, not all of these conventions require
criminalization. 59 Only the Internationally Protected Persons Convention,
the Bombings Convention and the Financing Convention expressly require
states to criminalize certain offenses. 60 The next tier comprises the Hague
Convention, the Montreal Convention and its Protocol, the Hostages
Convention, and Maritime Convention and its Protocol, each with its
somewhat ambiguous reference to offences that are punishable with
penalties. 61 Whether this rises to the level of a requirement to criminalize
is open to debate, as explained in the Introduction to this Part. 62 The Plastic
Explosives Convention forms the third tier, with its weak prohibit and
56. Id. art. 3.

57. Convention on the Physical Protection of Nuclear Material art. 3, Mar. 3, 1980, 1456
U.N.T.S. 101 (entered into force Feb. 8, 1997), available at http://www1.umn.edu/
humanrts/peace/docs/materialnuc.html [herinafter Nuclear Materials Convention].
58. See Laura A. Dickinson, Using Legal Process to Fight Terrorism: Detentions,
Military Commissions, International Tribunals, and the Rule of Law, 75 S. CAL. L. REV.
1407, 1459 (2002) (asserting that the Nuclear Material Convention criminalizes the
endangerment of nuclear material).
59. See supra Part I.A.
60. See supra Part I.A.3, 6-7.
61. See supra Part I.A.1-2,4-5.
62. See supra Part I.B.1.
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prevent language. 63 The Tokyo Convention and the Nuclear Materials

Convention occupy the fourth and final tiercounter-terrorism
conventions that lack a colorable argument for requiring
criminalization. 64 Therefore, it is incorrect to make a blanket statement that
the anti-terrorism conventions require signatory states to implement
domestic legislation criminalizing certain acts that the international
community has declared to be acts of terrorism. 65 At the same time, some
of these conventions require criminalization, so it equally is incorrect to
state that the conventions encourage states to criminalize some of those
acts commonly carried out by terrorists, 66 because those that mention
criminalization actually require such. 67
2. Virtually None of the Operative Paragraphs Mention

Terrorism
Apart from the more recent Bombings Convention and Financing
Convention, the word terrorism, terrorist, or terrorist act is left out
entirely from the title. 68 In their place, the euphemisms unlawful acts,
offences and certain other acts, and crimes are used. 69 Contrary to the
assertion of one commentator, the fact that terrorism or terrorist is
mentioned in the titles of the Bombings Convention and Financing
Convention does not mean that these two conventions are not as narrowly
drawn or do not carefully avoid[] the word terrorism. 70 On the
contrary, only once is the term terror used in the 52 combined operative
paragraphs of these two conventions, and even then it is a reference to the
provocation of a state of terror in the general public or in a group of
persons or particular persons in Article 5 of the Bombings Convention,
and not a reference to the more ambiguous terms terrorist acts or
terrorism. 71 This lack of term usage arguably reflects the lack of
consensus over the definitions of these terms and the international
63. See supra Part I.A.8.

65. Young, supra note 1, at 71 (emphasis added); see also Nicholas Rostow, Before and
After: The Changed UN Response to Terrorism Since September 11th, 35 CORNELL INTL
L.J. 475, 480 (2002) (asserting that the goal [of the conventions] was . . . criminalization).
66. See Young, supra note 1, at 46-47.
68. See supra Part I.A.1-9.
70. See Malvina Halberstam, The Evolution of the United Nations Position on
Terrorism: From Exempting National Liberation Movements to Criminalizing Terrorism
Wherever and by Whomever Committed, 41 COLUM. J. TRANSNATL L. 573, 579 (2003).
71. Bombings Convention, supra note 41, art. 5; Financing Convention, supra note 46.
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communitys effort to skirt the issue entirely. Moreover, both the

Bombings Convention and Financing Convention are comparable in
specificity to the other conventions in the types of offenses covered. 72
Thus, these conventions essentially avoid the terms terrorism and
terrorist acts, let alone define them. Apart from the occasional references
to terrorism or terrorist acts in the preambular paragraphs of the other
conventions, 73 these terms are entirely absent from the substance of these
conventions.
3. The Conventions Clearly Define the Covered Activities

A related observation deals with the clear definition each provides for
the type of offenses or acts covered by these conventions. Admittedly, the
Tokyo Convention could be clearer in providing a section for key
definitions, though Article 11 is sufficiently clear with regard to the
unlawful seizure of aircraft to be included along with the others in this
generalization. 74 A subtle distinction is made in these conventions that they
cover acts in which terrorists often engage, not terrorism itself. As Murphy
points out, Although these treaty provisions are often loosely described as
antiterrorist, the acts themselves that they cover are criminalized
regardless of whether, in a particular case, they could be described as
terrorism. 75 Commentators often ignore this distinction, for example,
when claiming that these conventions and their prohibitions are intended
to address terrorism without providing the necessary qualification. 76 The
entire absence of terrorism or terrorist acts in the body of these
conventions makes this distinction perfectly clear. 77 As a result, a definition
of terrorism becomes unnecessary, both on the domestic and
international level, because the distinct acts under each convention are at
issue and not a broader definition of terrorism. Therefore, contrary to the
72. See supra text accompanying notes 41-51.

73. Bombings Convention, supra note 41, at pmbl. paras. 2, 4-7, 9; Financing
Convention, supra note 46, at pmbl. paras. 2, 4-6, 8-10, 12; Maritime Convention, supra
note 34, at pmbl. paras. 3, 7-9; Plastic Explosives Convention, supra note 52, at pmbl. paras.
1-3; Hostages Convention, supra note 31, at pmbl. para. 5.
74. See Tokyo Convention, supra note 55, art. 11.
75. John F. Murphy, Civil Liability for the Commission of International Crimes as an
Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1, 24 (1999) [herinafter
Murphy, Civil Liability]; see also John F. Murphy, The Future of Multilateralism and
Efforts to Combat International Terrorism, 25 COLUM. J. TRANSNATL L. 35, 37-38 (1986)
[hereinafter Murphy, Multilateralism].
76. See Young, supra note 1, at 48.
77. See supra Part I.B.2.
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belief of one commentator, the domestic-law definition of terrorism is

irrelevant, not crucial, 78 as long as the offenses covered by the
conventions are properly criminalized.
One commentator sees these conventions as leav[ing] states
significant latitude in implementing their international obligations. 79
However, each involves a clear explanation of the acts that fall within the
Conventions scopeexcept for the Tokyo Convention, which he correctly
points out 80 and many require states to criminalize the covered acts. It is,
therefore, unclear where this perceived latitude comes from.
4. The Conventions Direct States to Deal with Acts

Associated with Terrorism
Fourth, and most relevant to this Article, criminalization is done on
the domestic level, with no effort to establish an international crime of
terrorism coming from any of these conventions. While states often are
directed to cooperate with each other in fulfilling their convention
obligations, the lions share of the responsibility for dealing with the acts
commonly associated with terrorism within a states jurisdiction falls
squarely on that states shoulders.
C. Pre-September 11 Resolutions
This Section discusses the requirements under various Security
Council resolutions to criminalize terrorism and Al Qaeda prior to the
September 11 attacks. However, before doing so, the italicized participle
Calls upon States that often appears in Security Council resolutions must
be analyzed, 81 as such an analysis assists in determining which paragraphs
create obligations on states and which do not.
1. Status of the Operative Phrase Calls upon States

The significance of the operative phrase Calls upon States is
important for this Section because Resolutions 1267, 1269, and 1333
contain such an operative phrase. 82 If such a phrase rises to the level of a
78.
See Young, supra note 1, at 34-35.
79.
Id. at 48.
80.
Id. at 49.
81.
See id. at 43 (emphasis added).
82.
S.C. Res. 1333, 18, U.N. Doc. S/RES/1333 (Dec. 19, 2000); S.C. Res. 1269, 4,
U.N. Doc. S/RES/1269 (Oct. 19, 1999); S.C. Res. 1267, 8, U.N. Doc. S/RES/1267 (Oct.
15, 1999). This analysis also is useful to Part II.B.1.b., infra, inasmuch as Resolution 1455
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requirement for states, then it might be said that these resolutions require
criminalization of Al Qaeda. There is no clear consensus as to whether this
wording constitutes mandatory action. In fact, there are approximately
equal numbers of commentators who indicate that it is mandatory action, 83
and those who indicate that it is recommendatory. 84 Another group falls in
between, seeing the phrase as ambiguous. 85 Obviously, the obligation
under the operative paragraph could be clearer. However, certainly when
U.N. Charter Article 33(2) provides that [t]he Security Council shall . . .
call upon the parties to settle their dispute by [peaceful] means, 86 or
Article 41 allows the Security Council to call upon the Members of the
United Nations to apply [measures not involving the use of armed
force], 87 such Security Council instructions to states are not merely
recommendatory, given the obligations placed on states to peacefully settle
their disputes under Paragraph 3 of Article 2 88 and abide by Security
Council Chapter VII decisions under Article 25, 89 respectively. When used
in the context of Chapter VII, and when the substance of the action in the
paragraph is sufficiently clear, this phrase is close enough to mandatory for
all intents and purposes. In the case of Security Council Resolution 1624,
which did not refer to Chapter VII and which had Calls upon all States
start out each one of its key operative paragraphs, this phrase would
nonetheless appear to create legal obligations on states that they then are
required to implement, which is made clear by the direction to the CTC to
follow up with states on their efforts to implement this resolution and to
contains such an italicized participle as well.

83. See Jean-Philippe Lavoyer, Jus in Bello: Occupation Law and the War in Iraq, 98
AM. SOCY INTL L. PROC. 121, 123 (2004); Derek Gilman, Comment, The Gulf War and the
United Nations Charter: Did the Security Council Fulfill its Original Mission?, 24 CONN. L.
REV. 1131, 1153 (1992); Young, supra note 1, at 43 n.115 (confusing calls upon all States
at the beginning of Resolution 1373 paragraph 3 with all States shall).
84. See Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 98
AM. J. INTL L. 526, 532 (2004); Paul C. Szasz, The Security Council Starts Legislating, 96
AM. J. INTL L. 901, 902 (2002); SYDNEY D. BAILEY, THE PROCEDURE OF THE UN SECURITY
COUNCIL 204-05 (1975).
85. See, e.g., John P. Grant, Beyond the Montreal Convention, 36 CASE W. RES. J. INTL
L. 453, 470 (2004) (Calls upon is hardly the language of obligation, but it is not that far
short, particularly in a resolution expressly adopted under Chapter VII of the Charter.);
Louis Henkin, Congress, the President and the United Nations, 3 PACE Y.B. INTL L. 1, 14
n.47 (1991).
86. U.N. Charter art. 33, para. 2 (emphasis added).
87. Id. art. 41 (emphasis added).
88. Id. art. 2, para. 3.
89. See id. art. 25.
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report that implementation to the Security Council in a year. 90 In the end,

the proper meaning of this phrase likely will depend on the context of its
use, though this Article views this italicized participle in the resolutions
mentioned in this Section as tending to create an obligation on states.
2. Security Council Resolutions Requiring Criminalization

The Security Council has played an active role in responding to the
threat from Al Qaeda and international terrorism. Some commentators
question whether the Security Council will continue to play a significant
role in responding to single terrorist acts and terrorist groups. 91 However,
as this Article indicates, the Security Council consistently has exhibited an
ability and willingness to require states to criminalize specific groups or
events, and there is no reason to think that the Security Council will be
unwilling to do the same in the face of future atrocious terrorist attacks,
should such attacks ever occur again. 92 The following paragraphs are
examples of how the Security Council took steps to require states to
criminalize certain aspects of the group Al Qaeda before the September 11
attacks.
a. Resolution 1267
Resolution 1267 was adopted on October 15, 1999 in an effort to put
pressure on the Taliban to comply with Resolution 1214 Paragraph 13,
which called for it to stop providing sanctuary and training for
international terrorists and their organizations. 93 Resolution 1267 does not
mention Al Qaeda but rather Usama bin Laden and his associates, 94 just
as Resolution 1214 did not mention Al Qaeda either. 95 However, this is not
surprising given that the title Al Qaeda was not in common use at the
time the Security Council adopted this resolution, which was the case until
90. S.C. Res. 1624, 1, 2, 3, 5, 6, U.N. DOC. S/RES/1624 (Sept. 14, 2005); see also
Bianchi, supra note 8, at 1048 (asserting that Resolution 1624 has the effect of blurring the
line between mandatory and non-mandatory measures).
91. Bardo Fassbender, The UN Security Council and International Terrorism, in
ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM 83, 84 (Andrea Bianchi ed.,
2004).
92. See infra Part I.C.2.a-c.
93. S.C. Res. 1214, 13, U.N. DOC. S/RES/1214 (Dec. 8, 1998); see S.C. Res. 1267,
supra note 82, 1.
94. Compare S.C. Res. 1267, supra note 82, 5, with S.C. Res. 1214, supra note 93, at
pmbl. para. 6 & 2 (mentioning just Osama bin Laden in the former and the latter
mentioning him and others associated with him [who] operate a network of terrorist
training camps from Taliban-controlled territory . . .).
95. S.C. Res. 1214, supra note 93.
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early 2001 when the U.S. government tried to prosecute bin Laden in
absentia under anti-Mafia laws and needed to name a criminal organization
for the statute to apply against him. 96 Still, this Article considers the phrase
Usama bin Laden and his associates as being equivalent to Al Qaeda.
With regard to the particular wording of Resolution 1267, Paragraph
8 [c]allsupon States to bring proceedings against persons and entities
within their jurisdiction that violate the measures imposed by paragraph 4
above and to impose appropriate penalties. 97 The acts under Paragraph 4
that are to be addressed in these proceedings involve such omissions as a
failure to deny landing and take off privileges to Taliban-owned, leased or
operated aircraft, or failure to freeze funds owned or controlled by the
Taliban. 98 As Paragraph 8 talks of jurisdiction and imposing penalties, it is
assumed that this provision is dealing with legal proceedings, which
typically would require some form of implementing legislation in order for
such proceedings to take place. While the reference to penalties might
suggest criminal legislation and proceedings, it is possible that other types
of legislation could impose non-criminal penalties, as was discussed in Part
I.A. above. 99 That said, Resolution 1267 makes Osama bin Laden and his
associates appear to be international outlaws when it states in the sixth and
seventh preambular paragraphs that the Security Council [d]eplor[es] the
fact that the Taliban continues to provide safe haven to Usama bin Laden
and to allow him and others associated with him to operate a network of
terrorist training camps from Taliban-controlled territory and to use
Afghanistan as a base from which to sponsor international terrorist
operations and notes the indictment of Usama bin Laden and his
associates. 100 The tone of the resolution seems to be requiring states to
deny Osama bin Laden and his associates safe haven. Indeed, Paragraphs 3,
4, and 5 of Resolution 1267 essentially make such a requirement express on
all states. 101 In this resolution, the Security Council identifies Osama bin
Laden and his associates as indicted criminals and requires that states deny
them safe haven, thus requiring criminalization of Al Qaeda in a sense. 102
96. See Lawrence Wright, The Rebellion Within, THE NEW YORKER, June 2, 2008,
available at http://www.newyorker.com/reporting/2008/06/02/080602fa_fact_wright.
97. S.C. Res. 1267, supra note 82, 8.
98. Id. 4.
100. S.C. Res. 1267, supra note 82, at pmbl.
101. Id. 3-5.
102. Id. at pmbl. (noting the indictment of Osama bin Laden and his associates by the
United States and noting his alleged crimes).
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b. Resolution 1269
Resolution 1269 is another place to look for an obligation from the
Security Council on states to criminalize terrorism. 103 In 1999, the Security
Council responded to the terrorist attacks on apartment buildings in
Moscow by condemning all acts, methods and practices of terrorism as
criminal and unjustifiable, regardless of their motivation, in all their forms
and manifestations, wherever and by whomever committed and [c]alls
upon all States to take . . . appropriate steps to . . . deny those who plan,
finance or commit terrorist acts safe havens. 104 The term all in all acts,
methods and practices of terrorism would include the acts of terrorism
committed by Al Qaeda. 105 If the Security Council condemns certain acts
as criminal and then requires states to deny such criminals safe haven, one
way for a state to meet this obligation to deny such criminals safe haven
would be to make the states criminal legislation reach such criminals and
criminal activity. Therefore, one might reasonably conclude that Resolution
1269 calls for criminalization of terrorism (including Al Qaeda). This is not
an implausible reading of Resolution 1269, though it likely is not the first
interpretation that comes to mind. However, as Resolution 1269 does not
appear to be a Chapter VII decision, it is somewhat difficult to argue that
states are obliged to carry out its contents, at least under the obligation
created by U.N. Charter Article 25.
c. Resolution 1333
Unlike Resolutions 1267 and 1269, Resolution 1333 Paragraph 8(c)
expressly names Al Qaeda along with Osama bin Laden, which is an
innovation in and of itself. 106 Resolution 1333 was adopted on December
19, 2000, and extended the sanctions imposed against the Taliban in
Resolution 1267 directly to Usama bin Laden and individuals and entities
associated with him. 107 The language in Paragraph 18 of Resolution 1333
is virtually identical to Paragraph 8 of Resolution 1267, which is quoted
above, though it requires states to initiate proceedings against more types
of acts, including a failure to: (1) prevent transfer of arms and military
assistance to the Taliban, and withdraw personnel providing security advice
to the Taliban under Paragraph 5; (2) close Taliban and Ariana Afghan
103. S.C. Res. 1269, supra note 82, at 2 (Unequivocally condemn[ing] all acts, methods
and practices of terrorism as criminal and unjustifiable . . . .).
104. Id. 1-4.
105. See id. 1.
106. Compare id., and S.C. Res. 1267, supra note 82, with S.C. Res. 1333, supra note 82,
8(c).
107. S.C. Res. 1333, supra note 82, 8(c).
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Airline offices, and freeze assets of Usama bin Laden and individuals and
entitles associated with him as designated by the Committee, including
those in the Al Qaida organization, under Paragraph 8; (3) prevent sale,
supply or transfer of the chemical acetic anhydride to anyone in Taliban-
controlled Afghanistan under Paragraph 10; and (4) deny take-off, landing,
and over-fly permission to an aircraft leaving or going to Taliban-
controlled Afghanistan under Paragraph 11. 108 Just as with the preambular
paragraphs in Resolution 1267 that condemn the Taliban for providing Al
Qaeda with a safe haven and note their criminal indictments, the tenth and
eleventh preambular paragraphs of Resolution 1333 reiterate this
condemnation and fact of indictment. 109 Moreover, operative paragraphs 4,
5, 8, 10 and 11 of Resolution 1333 essentially require all states to deny Al
Qaeda safe haven, just as paragraphs 3, 4, and 5 of Resolution 1267 did. 110
Assuming that these paragraphs require states to criminalize such failures
to act, which is not an implausible interpretation (as was explained under
Resolution 1267 above), then this is the first international obligation to
criminalize certain favorable treatment of Al Qaeda that actually mentions
Al Qaeda by name.
D. Conclusion for Part I

Part I has shown how the conventions do not mention terrorism or
terrorist acts in a substantive way, let alone define such terms. 111 This
does not mean that the international community has not tried to define
these terms. On the contrary, the struggle to define and condemn terrorism
on the international level has raged for a long time now, which is the reason
why these conventions have intentionally left out these key terms. 112 If the
Comprehensive Terrorism Convention ever enters into force, it will provide
the first clear definition of terrorism, which is needed for international
cooperation purposes in combating terrorism or else run roughshod over
the rule of law. Otherwise, states will be left to define terrorism, terrorist
108. Compare S.C. Res. 1267, supra note 82, 4-8, with S.C. Res. 1333, supra note 82,
5, 8, 10, 11, 18.
109. Compare S.C. Res. 1267, supra note 82, at pmbl. 6-7, with S.C. Res. 1333, supra
note 82, 3-5.
110. See S.C. Res. 1333, supra note 82, 4-5, 8, 10-11; S.C. Res. 1267, supra note 82,
3-5.
111. See supra Part I.B.2-4.
112. See Sikanden Ahmed Shah, The U.S. Attacks on Afghanistan: An Act of Self-Defense
Under Article 51, 6 SEATTLE J. FOR SOC. JUST. 153 (2007); Press Release, General
Assembly, Agreed Definition of Term Terrorism Said to be Needed for Consensus on
Completing Comprehensive Convention Against It, U.N. Doc. GA/L/3276 (July 10, 2005),
available at http://www.un.org/News/Press/docs/2005/gal3276.doc.htm.
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acts, and terrorist organizations as they choose, which essentially is the

situation now. Whether a universal definition can be adopted remains a
mystery; one eminent practitioner has conceded that it is impossible to
define terrorism in the abstract, and has instead opted for a lawyerly
sleight-of-hand handling of terrorism by using the consensus over the
definition of war crimes. 113 This is not to say that such an approach is bad.
Indeed, this author advocated a similar approach to defining certain large-
scale acts of terrorism as genocide or as crimes against humanity, 114 nearly
two years before the Supreme Court of India adopted this approach in
Singh v. Bihar in April 2004. 115 The purpose of this Part has not been to
rehash the debates surrounding the definition or to introduce a new
definition. Rather, it merely points out how the need for a definition of
terrorism has been circumvented in the period before the September 11
attacks by requiring states to criminalize certain distinct acts. This Part also
has showed how certain pre-September 11 resolutions appear to have
required states to criminalize certain aspects of supporting Al Qaeda. Part
II shows how the post-September 11 resolutions also require states to
criminalize certain aspects of Al Qaeda, though perhaps in clearer terms.
Still, the change between the pre- and post-September 11 approach to
criminalizing international terrorism in general and Al Qaeda in particular
is not all that dramatic. Where it is different is in requiring states to combat
terrorism and terrorist acts per se without the international community
providing a definition of these terms. Whereas the definition of terrorism
essentially was irrelevant before September 11, these resolutions make
such a definition of utmost importance. 116
II. Criminalization After September 11

The September 11 attacks changed many things: they not only
tragically ended the lives of 2,974 innocent people and forever affected an
untold number of relatives and loved ones throughout the world,117 but they
113. See Michael P. Scharf, Defining Terrorism as the Peacetime Equivalent of War
Crimes: Problems and Prospects, 36 CASE W. RES. J. INTL L. 359, 359-60 (2004).
114. See James D. Fry, Comment, Terrorism as a Crime Against Humanity and
Genocide: The Backdoor to Universal Jurisdiction, 7 UCLA J. INTL L. & FOREIGN AFF.
169, 169 (2002).
115. See Scharf, supra note 113, at 359-60 (citing Singh v. Bihar, (2004) 3 S.C.R. 692,
April 2, 2004, para. 16, available at http://judis.nic.in).
116. Please note that a definition of terrorism or terrorist acts is important to a state only
inasmuch as it has these as separate crimes in its code. Where general criminal law is still
used by a state to combat terrorism and prosecute terrorists, no such definitions are needed.
117. See Washingtonpost.com, September 11 Memorial, http://projects.washingtonpost
.com/911victims/ (last visited Nov. 21, 2008).
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led to a transformation of U.S. foreign and domestic policy in an effort to

ensure that such atrocities never happen again on U.S. soil. 118 The U.N.
Security Council also became more involved in combating international
terrorism with its recommitment to combat by all means threats to
international peace and security caused by terrorist acts, which was stated
the day after these attacks were committed. 119 While such involvement has
spawned greater state participation in counter-terrorism efforts and the
creation of new subsidiary organs, such as the CTC, this has further
entrenched the piecemeal approach exhibited prior to these attacks. In a
way, it has opened Pandoras box by making the definition of terrorism a
fundamental part of the response to terrorism without providing a definition
of what international terrorism is, thus allowing states to craft their own
definitions. This Part looks at the post-September 11 approach to
addressing terrorism, and attempts to explain why the approach is not
substantially different from the approach used before the attacks. 120 It
concludes with two general observations on the criminalization of terrorism
after the September 11 attacks. 121
A. The Nuclear Terrorism Convention: A Post-September 11

Counter-Terrorism Convention
The clearest similarity between approaches is contained in the
conventions. Although not yet in force, the International Convention for the
Suppression of Acts of Nuclear Terrorism, otherwise known as the Nuclear
Terrorism Convention, provides in Article 5: Each State Party shall adopt
such measures as may be necessary: (a) To establish as criminal offences
under its national law the offences set forth in article 2; (b) To make those
offences punishable by appropriate penalties which take into account the
grave nature of these offences. 122 Identical to Bombings Convention
Article 5, Article 6 of the Nuclear Terrorism Convention goes on to require
states to adopt such measures as may be necessary, including, where
appropriate, domestic legislation. 123 The fundamental obligation to
118. See, e.g., Uniting and Strengthening America by Providing Appropriate Tools
Required to Interpret and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(2001) [hereinafter USA Patriot Act].
119. S.C. Res. 1368, pmbl., U.N. Doc. S/RES/1368 (Sept. 12, 2001).
120. See infra Part II.A-B.
121. See infra Part II.C.
122. International Convention for the Suppression of Acts of Nuclear Terrorism, G.A.
Res. 59/290, art. 5, U.N. Doc. A/RES/59/290 (Apr. 15, 2005) (not yet in force) (emphasis
added).
123. Id. art. 6.
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criminalize the substance of the Nuclear Terrorism Convention arises out

of Article 5. 124 Article 2(1) sets out the specific acts covered by this
convention:
1. Any person commits an offence within the meaning of this
Convention if that person unlawfully and intentionally:
(a) Possesses radioactive material or makes or possesses a
device:
(i) With the intent to cause death or serious bodily injury;
or
(ii) With the intent to cause substantial damage to property
or to the environment;
(b) Uses in any way radioactive material or a device, or uses
or damages a nuclear facility in a manner which releases or
risks the release of radioactive material:
(i) With the intent to cause death or serious bodily injury;
or
(ii) With the intent to cause substantial damage to property
or to the environment; or
(iii) With the intent to compel a natural or legal person, an
international organization or a State to do or refrain from
125
doing an act.
Article 2(2) to (4) expand the offenses covered by this convention to
include threats and attempts to commit these acts, as well as accomplices to
these acts, threats, and attempts. 126 Interestingly, Article 5s requirement to
criminalize in national laws these offenses listed in Article 2 is
substantially similar to the requirements in the pre-September 11
conventions, especially the Bombings Convention and the Financing
Convention, as explained in Part I.A. above. 127 Moreover, the specificity of
the covered offenses under this Convention is equivalent to those in the
pre-September 11 conventions. This observation buttresses this Articles
thesis that little has changed concerning the pre- and post-September 11
approaches to combating terrorism. This is the case even though states have
felt more international pressure after September 11 to join all of the
124. Id.; International Convention for the Suppression of Terrorist Bombings, G.A. Res.
52/164, art. 5, U.N. Doc. A/RES/52/164 (Jan. 9, 1998).
125. International Convention for the Suppression of Acts of Nuclear Terrorism, supra
note 122, art. 2(1).
126. See id. art. 2(2)-(4).
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counter-terrorism conventions already mentioned through Security Council

Resolutions 1373. 128 The next section discusses the Security Councils
involvement in counter-terrorism after September 11 with the aim to
buttress this Articles thesis further.
B. Security Council Involvement in Counter-Terrorism

Prior to September 11, the General Assembly had the primary role
in addressing international terrorism. 129 Its main task and accomplishment
in this field was to facilitate the drafting and adoption of the conventions
discussed in Part I.A. above. At least one commentator has called the
General Assemblys attitude towards international terrorism ambivalent,
pointing to its failure to come up with a comprehensive definition of
terrorism. 130 This same commentator then asserts that things changed after
September 11 with the Security Councils involvement with terrorism, 131
even though no comprehensive definition of terrorism has yet resulted from
such increased involvement by the Security Council. Indeed, there have not
been claims that the Security Council has an ambivalent attitude towards
internationalterrorism, thus suggesting that the General Assemblys failure
to come up with a comprehensive definition may not reflect any
ambivalence after all. On the contrary, it must be recognized that defining
terrorism is difficult. The General Assembly appears to steadfastly have
dealt with terrorism over the years, though political realities of the Cold
War limited its pronouncements to distinct acts often associated with
terrorism. Indeed, the General Assembly, in particular the Sixth
Committee, was responsible for many of the conventions discussed
above, 132 all of which showed a persistence in criminalizing many acts
commonly committed by terrorists, even if not under the title terrorism.
Once the Cold War ended, however, the General Assembly began to
condemn international terrorism in earnest. 133
128. See S.C. Res. 1373, 3(d), U.N. Doc. S/RES/1373 (Sept. 28, 2001); see also S.C.
Res. 1624, supra note 90, preamb. 11 (Stressing its call upon all States to become party,
as a matter of urgency, to the international counter-terrorism Conventions and Protocols . .
.).
129. See Young, supra note 1, at 33-34; Rostow, supra note 65, at 479.
130. Young, supra note 1, at 34.
131. See id.
132. See Rostow, supra note 65, at 479-80.
133. See, e.g., Measures to Eliminate International Terrorism, G.A. Res. 49/60, U.N.
Doc. A/RES/49/60 (Dec. 9, 1994); Human Rights and Terrorism, G.A. Res. 48/122, U.N.
Doc. A/RES/48/122 (Dec. 20, 1993); see also Halberstam, supra note 70, at 575-76; Young,
supra note 1, at 39-40.
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As alluded to in the prior paragraph, the General Assembly had the

primary role in addressing terrorism prior to the September 11 attacks.
However, this is not to say that the Security Council had no role at all.
Some commentators see Security Council involvement as the main
difference between pre- and post-September 11 treatment of terrorism. 134
For example, Young sees the September 11 attacks as the point at which
terrorism shifted from an issue of ongoing concern for the General
Assembly to one that threatened international peace and security sufficient
to engage the Security Council. 135 Rosand calls the Security Councils
deep involvement in the United Nations counterterrorism effort following
September 11 a new development. 136 However, the Security Council has
shown deep involvement in counter-terrorism at least since 1992 in dealing
with the 1988 bombing of Pan Am Flight 103. 137 In addition, the Security
Council began its condemnation of the Taliban in 1998, 138 and even began
sanctions against the Taliban and Osama bin Laden in October 1999 with
Resolution 1267. 139 This Section, which lays out the Security Councils
response to the September 11 attacks, suggests that the response is not as
much of a departure as certain commentators assert. 140
1. Security Council Resolutions after the September 11

Attacks
This Section looks at the Security Councils involvement in
combating terrorism after the September 11 attacks in an effort to assess
whether its approach changed between the time before and after the attacks.
134. See Young, supra note 1, at 34.

135. Id.
136. Eric Rosand, Security Council Resolution 1373, The Counter-Terrorism Committee,
and the Fight Against Terrorism, 97 AM. J. INTL L. 333, 333 (2003).
137. See generally S.C. Res. 748, U.N. Doc. S/RES/748 (Mar. 31, 1992) (reaffirming
Resolution 731); S.C. Res. 731, U.N. Doc. S/RES/731 (Jan. 21, 1992) (recalling a statement
the President of the Security Council made condemning the 1988 destruction of Pan Am
Flight 103); see also Rostow, supra note 65, at 486 (describing efforts the Security Council
made in response to the bombing of Pan Am Flight 103).
138. See generally S.C. Res. 1214, supra note 93 (expressing concern over the recently-
sharpened Afghan conflict resulting from the Taliban forces); S.C. Res. 1193, U.N. Doc.
S/RES/1193 (Aug. 28, 1998) (condemning the attacks the Taliban made on United Nations
Personnel); see also Rostow, supra note 65, at 486 (On October 15, 1999, the Security
Council adopted Resolution 1267, imposing sanctions on Usama bin Laden and Taliban-
controlled Afghanistan . . . .).
139. S.C. Res. 1267, supra note 78, 4(a)-(b); see also Rostow, supra note 65, at 486
(In August 1993, the Security Council condemned the attacks on [United Nations]
personnel in the Taliban-held territories of Afghanistan.).
140. See Rosand, supra note 136, at 333; Young, supra note 1, at 34.
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Admittedly, these post-September 11 resolutions are distinct from the pre-

September 11 ones discussed in Part I.C. above. However, the fundamental
approach that the Security Council has taken to combating terrorism and Al
Qaeda has not changednamely, requiring states to criminalize certain
aspects of Al Qaeda in particular and international terrorism in general,
though leaving it up to states to define the target group and activity in
whatever way they see fit. This leads to a piecemeal approach to combating
international terrorism and Al Qaeda on the international level.
a. Resolutions 1373 and 1390

Like Resolution 1333 from before the September 11 attacks,
Resolution 1390 expressly addresses the threat from Al
Qaeda. 141 Resolution 1390 transformed the sanctions regime against the
Taliban under Resolution 1267, which was based on the Taliban-controlled
Afghanistan territory, to a sanctions regime that is not dependent on
territory. 142 By January 16, 2002, the date the Security Council adopted
Resolution 1390, Operation Enduring Freedom successfully had ousted the
Taliban regime from power, the Afghan interim government had been
inaugurated, and Al Qaeda was on the run. 143 Therefore, this Resolution
was to maintain the sanctions on Al Qaeda and the Taliban even after the
Taliban had lost control of its territory. Rostow asserts that the Security
Council, with Resolution 1390, broke new ground in adopting such an
approach of sanctioning a target group outside of a territorial basis. 144
However, as mentioned in Part II.B.2.a. below, Resolution 1368 can be
considered a Chapter VII action against a target that is not based on a
particular territorythe perpetrators, organizers and sponsors of the
September 11 attacks, 145 wherever they are to be found. In addition,
Resolution 1171 imposed sanctions on the Revolutionary United Front
141. See S.C. Res. 1390, 2, U.N. Doc. S/RES/1390 (Jan. 28, 2002); S.C. Res. 1333,
supra note 82.
142. See S.C. Res. 1390, supra note 141; S.C. Res. 1267, supra note 82.
143. See S.C. Res. 1390, supra note 141, 2; David Rohde, A Nation Challenged:
Transfer of Power; Afghan Leader is Sworn in, Asking for Help to Rebuild, N.Y. TIMES,
Dec. 23, 2001, at A1, available at 2001 WLNR 3373279.
144. Rostow, supra note 65, at 487; see also Andrea Bianchi, Assessing the Effectiveness
of the UN Security Councils Anti-terrorism Measures: The Quest for Legitimacy and
Cohesion, 17 EUR. J. INTL L. 881, 882 (2006) (asserting Resolution 1390 was the first
resolution of an open-ended nature with no apparent link to any specific territory).
145. S.C. Res. 1368, supra note 119, 3.
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(RUF), which operated not only in Sierra Leone, but also in Liberia and
Guinea 146 yet another example of the sanctioning of a target group
outside of a territorial basis.
Resolution 1390, Paragraph 4 makes the criminalization requirements
of Resolution 1373 expressly applicable to Al Qaeda. 147 Paragraph 1(b) of
Resolution 1373 requires states to [c]riminalize the willful provision or
collection, by any means, directly or indirectly, of funds by their nationals
or in their territories with the intention that the funds should be used, or in
the knowledge that they are to be used, in order to carry out terrorist
acts[.] 148 Paragraph 2(e) further requires states to [e]nsure that any
person who participates in the financing, planning, preparation or
perpetration of terrorist acts or in supporting terrorist acts is brought to
justice and ensure that, in addition to any other measures against them,
such terrorist acts are established as serious criminal offences in domestic
laws and regulations and that the punishment duly reflects the seriousness
of such terrorist acts[.] 149 Other paragraphs talk of preventing,
suppressing, prohibiting and denying various forms of terrorist acts or safe
havens for their perpetrators, 150 which arguably could indirectly require
criminalization, though Paragraphs 1(b) and 2(e) are unequivocal in
requiring criminalization. Assuming that members of Al Qaeda are
expected to undertake some activities, whether it is in the planning or
execution stages, Paragraph 2(e) will criminalize membership in Al Qaeda.
Moreover, if membership in Al Qaeda is attained with payment of a fee,
Paragraph 1(b) will criminalize membership in Al Qaeda, though gaining
membership likely does not have the same formal processes associated
with joining an innocent group, which may lead to the issuance of a
membership card to fee-paying members such as when you join a gym.
Regardless, Paragraph 4 of Resolution 1390 expressly makes Resolution
1373 apply in full to any member of the Taliban and the Al-Qaida
organization, and any individuals, groups, undertakings and entities
associated with the Taliban and the Al-Qaida organization . . . . 151 In
full obviously would include Paragraphs 1(b) and 2(e) of Resolution 1373.
Therefore, where Resolution 1373 implicitly might apply to Al Qaeda per
se, Resolution 1390 seems to
146. See S.C. Res. 1171, 5, U.N. Doc. S/RES/1171 (June 5, 1998); FAS Intelligence
Resource Program, Revolutionary United Front (RUF), http://www.fas.org/irp/world/para
/ruf.htm (last visited Nov. 30, 2008).
147. See S.C. Res. 1390, supra note 141, 4.
148. S.C. Res. 1373, supra note 128, 1(b) (emphasis added).
149. Id. 2(e) (emphasis added).
150. Id. 1-2.
151. S.C. Res. 1390, supra note 141, 4.
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make this application explicit. As discussed in Part III below, the practice
of some states supports this interpretation of Resolutions 1373 and 1390, as
they have reported their criminalization of Al Qaeda per se to the CTC. 152
b. Resolution 1455
Resolution 1455 strengthens the measures against the Taliban and Al
Qaeda. This particularly is true with regard to criminalization, where
Paragraph 5
Calls upon all States to continue to take urgent steps to enforce
and strengthen through legislative enactments or administrative
measures, where appropriate, the measures imposed under
domestic laws or regulations against their nationals and other
individuals or entities operating in their territory, to prevent and
punish violations of the measures referred to in paragraph 1 of
this resolution. 153
While it still falls short of expressly requiring criminalization, use of the
italicized word punish pushes the obligation closer to such a requirement
than the word penalties in Paragraph 8 of Resolution 1267 and Paragraph
18 of Resolution 1333. 154
c. Resolution 1526
Resolution 1526 ostensibly strengthens the measures against Al
Qaeda in particular, though it at least fails to do this with regard to
criminalizing any of the activities or support of Al Qaeda. Indeed,
Resolution 1526 does not even refer to any of the paragraphs discussed
above that allude to a requirement to criminalize Al Qaeda or the
Taliban. 155 Paragraph 20 of Resolution 1526 is the closest thing to such a
requirement, which [r]eiterates the urgency for all States to comply with
their existing obligations to implement the measures referred to in
paragraph 1 above and to ensure that their domestic legislative enactments
or administrative measures, as appropriate, permit the immediate
implementation of those measures . . . . 156 Paragraph 1 refers to Paragraph
4(b) of Resolution 1267, Paragraph 8(c) of Resolution 1333, and
Paragraphs 1 and 2 of Resolution 1390, all of which deal with the freezing
152. See infra Part III.

153. S.C. Res. 1455, 5, U.N. Doc. S/RES/1455 (Jan. 17, 2003) (second emphasis
added).
154. See supra Part I.C.2.a, c.
155. See S.C. Res. 1526, U.N. Doc. S/RES/1526 (Jan. 30, 2004).
156. See id. 20 (second and third emphasis added).
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of certain funds, not with the punishment or penalties for such violations
under domestic law, 157 which is a distinct issue. In this regard, permit the
immediate implementation would seem to go only to the immediate
implementation of the freezing obligations, 158 not to the so-called
criminalization obligations of these prior resolutions. Therefore, Resolution
1526 does not appear to strengthen the measures against Al Qaeda with
regard to criminalization, or even reiterate those earlier measures.
d. Resolution 1624
Resolution 1624 does not mention Al Qaeda, nor does it refer to
Chapter VII though it still appears to create obligations on states, as
explained in Part I.C.1, supra. Resolution 1624 adds to the Resolution 1373
regime what would appear to be a requirement to prohibit and prevent
incitement to commit terrorism, as well as to deny safe haven to anyone
who is reasonably suspected of having committed such
incitement.Paragraph 1 of Resolution 1624 provides:
Calls upon all States to adopt such measures as may be necessary
andappropriate and in accordance with their obligations under
international law to:
(a) Prohibit by law incitement to commit a terrorist act or
acts;
(b) Prevent such conduct;
(c) Deny safe haven to any persons with respect to whom
there is credibleand relevant information giving serious
reasons for considering that they have been guilty of such
159
conduct; . . . .
As mentioned in Part I.C.1, the language Calls upon here and in the other
key operative paragraphs appears to create obligations that states are
expected to implement and report their implementation to the CTC, with
the CTC being directed to report that implementation to the Security
Council. 160 In terms of a requirement to criminalize, though, Paragraph 1(a)
only calls upon states to [p]rohibit by law incitement . . ., which, as
explained in Part I.A above, does not require criminalization. 161
157. See id. 1.

158. Id. 20.
159. S.C. Res. 1624, supra note 90, 1.
160. See id. 1, 2, 4-6.
161. See id. 1(a).
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2. The Nature of the Resolution 1373 Regime
a. Innovation or Stagnation?
Resolution 1373 has been called the cornerstone of the United
Nations counterterrorism effort. 162 Indeed, nothing appears to be as
important to the United Nations effort to combat international terrorism as
Resolution 1373. Resolution 1373 essentially creates two obligations on
states concerning criminalization: to pass legislation criminalizing certain
acts and then to use these domestic laws to combat international
terrorism. 163 The existence of criminal legislation and the existence of
prosecutions under those statutes are open for inspection and scrutiny by
the international community, and may be the reason why the United
Nations has stayed with this piecemeal approach to criminalization of
terrorism since September 11. However, there is no basis upon which to
challenge such measures as being improper. After all, Resolution 1373
gives broad discretion to states in defining terrorism, 164 which will
ultimately determine the scope of the legislation and the prosecutions that
result under it. Without obligations on states to harmonize their laws or
provide a universal definition of terrorism, this piecemeal approach to
combating terrorism likely is to remain.
Most commentators get the sense that Resolution 1373 has changed
things, though they fail to identify its true innovation. Some point to the
operative phrase decides that all States shall as being revolutionary or
unprecedented in imposing binding obligations on all U.N.
members. 165 However, these commentators seem to ignore the fact that
quite a few earlier Chapter VII resolutions use this same type of
language. 166 Other commentators take it a step further by asserting that
162. Rosand, supra note 136, at 333; see also Eric Rosand, Security Council Resolution
1373 and the Counter-Terrorism Committee: The Cornerstone of the United Nations
Contribution to the Fight Against Terrorism, in LEGAL INSTRUMENTS IN THE FIGHT AGAINST
INTERNATIONAL TERRORISM: A TRANSATLANTIC DIALOGUE 603, 604 (C. Fijnaut et al. eds.,
2004).
163. See S.C. Res. 1373, supra note 128, 1(e).
164. See id.
165. See, e.g., Young, supra note 1, at 43-44 (placing particular emphasis on this
language to suggest that this resolution marks the beginning of a new legislative role for the
Security Council); Rosand, supra note 136, at 334 (asserting that such a resolution as 1373,
which creates uniform obligations on all UN members, is an unprecedented step for the
Security Council to take); Szasz, supra note 84, at 901-02.
166. See, e.g., S.C. Res. 1267, supra note 82, 3-4; S.C. Res. 748, supra note 137, 3-
6; S.C. Res. 687, 24, U.N. Doc. S/RES/687 (Apr. 3, 1991). In addition, Resolution 1373
also uses the so-called familiar language calls upon all States at the beginning of
paragraph 3, which the commentator mistakenly asserts starts with all States shall . . . .
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Resolution 1373 is revolutionary because it requires states to act in a way

other than to discipline a particular state. For example, Young states that
Resolution 1373 was the first use of Chapter VII powers to order states to
take or refrain from specific actions other than when disciplining a specific
country. 167 Similarly, Crdenas sees Resolution 1373 as [breaking] new
ground by using, for the first time ever, the Councils Chapter VII powers
to direct all Member States to take steps to do or refrain from doing what it
mandates, in a general context not directly related to disciplining any
individual country or particular non-state actor. 168 However, these
commentators are somewhat mistaken because Resolution 1373 was not
adopted in a general context. The first two preambular paragraphs of
Resolution 1373 suggest that its target was the perpetrators of the
September 11 attacks, with Paragraph 1 reaffirming Resolution 1368,
which had as its sole target the September 11 attacks and the bringing to
justice the perpetrators, organizers and sponsors of these terrorist attacks,
and Paragraph 2 again condemning the September 11 attacks. 169 Operative
Paragraph 3(e) of Resolution 1373 again refers to Resolution 1368, though
without ever expressly referring to these specific terrorist attacks or their
perpetrators. 170 However, before concluding that Resolution 1373 has no
express target, it is interesting to note its similarities to Resolution 1363,
which has as its perceived target the Taliban regime but never refers to the
Taliban regime itself in its operative paragraphs. Instead, it refers to States
bordering the territory of Afghanistan under Taliban control in Paragraph
3(b), 171 which is not the same as a reference to the Taliban regime itself.
Critics will correctly point to Resolution 1363s numerous references to
Resolutions 1267 and 1333 throughout, both of which clearly have the
Taliban regime as their target.
However, one cannot also ignore Resolution 1373s references to
1368, 172 which has a clear target as well. Indeed, this point is best
understood when reviewing states reports to the CTC, where virtually all
states expressed their solidarity with the United States in responding to the
September 11 attacks, often using surprisingly powerful language, even
from states that typically are not considered as close friends of the United
States. For example, North Korea expressed its outrage over these
See Young, supra note 1, at 43 n.115.

167. Young, supra note 1, at 42.
168. Emilio J. Crdenas, The United Nations Security Councils Quest for Effectiveness,
25 MICH. J. INTL L. 1341, 1341 (2004) (citing Szasz, supra note 84, at 901).
169. See S.C. Res. 1373, supra note 128, 2; S.C. Res. 1368, supra note 119, 1, 3.
170. See S.C. Res. 1373, supra note 128, 3(e).
171. S.C. Res. 1363, 3(b), U.N. Doc. S/RES/1363 (July 30, 2001).
172. See S.C. Res. 1373, supra note 128.
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attacks; 173 Iran called them tragic; 174 and Libya denounced them as
criminal. 175 Putting aside the question of whether these sentiments were
sincere, the overall tone makes it appear that states acknowledge that
Resolution 1373 was adopted in response to the September 11 attacks. 176
Even the CTC acknowledges this on the home page of its website when it
explains that in the wake of the September 11 terrorist attacks in the United
States, the United Nations Security Council unanimously adopted
Resolution 1373. 177 While the impact and scope of Resolution 1373 are far
broader than the September 11 attacks and its perpetrators, one ought not
come to the conclusion that Resolution 1373 was not in response to a
particular conflict.
Moreover, although Resolution 1368 does not contain the standard
phraseology [a]cting under Chapter VII of the Charter of the United
Nations to indicate a Chapter VII resolution. 178 Resolution 1368 is,
nonetheless, considered a Chapter VII Resolution here in that the Security
Council suggests that it is responding to a threat to international peace and
security in the second preambular paragraph and the first operative
paragraph; and it [c]alls on all States to work together urgently to bring to
justice the perpetrators, organizers and sponsors of these terrorist attacks
in operative paragraph 3. 179 While non-Chapter VII resolutions involving
173. See Chairman of the Counter-Terrorism Committee, Supplementary Report of the

Government of the Democratic Peoples Republic of Korea on the Implementation of
Security Council Resolution 1373 (2001), at 3, U.N. Doc. S/2002/862 (Aug. 1, 2002).
174. Chairman of the Counter-Terrorism Committee, Report of the Islamic Republic of
Iran to the Counter-Terrorism Committee Pursuant to Paragraph 6 of Security Council
Resolution 1373 (2001) of 28 September 2001, at 4, U.N. Doc. S/2001/1332 (Dec. 31,
2001).
175. Chairman of the Counter-Terrorism Committee, Note Verbale Dated 26 December
2001 from the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations
Addressed to the Security Council Committee Established Pursuant to Resolution 1373
(2001) Concerning Counter-Terrorism, at 2, U.N. Doc. S/2001/1323 (Dec. 31, 2001). Not
surprisingly, Saddam Husseins Iraq did not mention the September 11 attacks.
176. See S.C. Res. 1373, supra note 128 (adopted shortly after the attacks).
177. U.S. Report to the UN Counterterrorism Committee, http://www.state.gov/p/io
/rls/rpt/2001/6917.htm (last visited Nov. 21, 2009).
178. See S.C. Res. 1368, supra note 119.
179. See id. 3. Some commentators undoubtedly will disagree that this is the
characterization of Resolution 1368. See, e.g., Daniel H. Joyner, The Proliferation Security
Initiative: Nonproliferation, Counterproliferation, and International Law, 30 YALE J. INTL
L. 507, 541 (2005) (asserting that the legal character of the text changes from obligation-
imposing to invitation-making when the Security Council calls upon states to take ill-
defined and broadly termed action). The distinction to be made here is that Paragraph 3 of
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counter-terrorism often call on states to act, such instructions never involve

urgently or are as direct as that in Resolution 1368. 180 While critics may
dismiss this similarity between Resolutions 1373 and 1363 as
inconsequential, it nonetheless goes against the argument that Resolution
1373 was unprecedented in obliging states to act under Chapter VII against
an unspecified target.
b. Deterioration: The Failure to Define Key Terms

The true innovation, a term that normally connotes strength, is
more like a new weakness. Paragraphs 1(b) and 2(e) of Resolution 1373
make terrorist acts a key part of the acts to be criminalized. 181 In fact,
there are thirty-nine references to terrorism, terrorist, or terrorist acts
throughout Resolution 1373, with thirty-one of those appearing in the
operative paragraphs. 182 However, Resolution 1373 does not provide any
definition or hint of a definition for these key terms. Such a definition was
not provided probably because the international community could not come
up with one. 183 At least one commentator claims that the Security Council
intentionally did not even try to define terrorism in order to avoid a debate
on this contentious matter, thus enabling the resolution to be pushed
through relatively quickly. 184 At a minimum, these provisions require states
to review their laws in light of these requirements, and to amend them
where they fall short. In order to fulfill this minimum requirement,
however, states must define for themselves the key terms terrorist acts or
Resolution 1368 may have used ill-defined terms such as bring to justice, but the overall
requirement on states is clear and quite specificcapture all those involved with the
September 11 attacks. See S.C. Res. 1368, supra note 119, 3.
180. See, e.g., S.C. Res. 1269, supra note 82, 4 (Calls upon all States to take, inter
alia, in the context of such cooperation and coordination, appropriate steps to: [prevent and
suppress terrorist acts and deny their perpetrators safe haven].); S.C. Res. 1189, 3, U.N.
Doc. S/RES/1189 (Aug. 13, 1998) (Calls upon all States and international institutions to
cooperate with and provide support and assistance to the ongoing investigations in Kenya,
Tanzania and the United States to apprehend the perpetrators of these cowardly criminal
acts and to bring them swiftly to justice . . . .); S.C. Res. 635, 6, U.N. Doc. S/RES/635
(June 14, 1989) (Calls upon all States to share the results of such research and co-operation
with a view to devising, in the International Civil Aviation Organization and other
competent international organizations, an international rgime for the marking of plastic or
sheet explosives for the purpose of detection.).
181. S.C. Res. 1373, supra note 128, 1(b), 2(e).
182. See id.
183. See Crdenas, supra note 168, at 1341.
184. See, e.g., Eric Rosand, The Security Council as Global Legislator: Ultra Vires or
Ultra Innovative?, 28 FORDHAM INTL L.J. 542, 582 n.175 (2005) [hereinafter Rosand,
Global Legislator].
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terrorism to determine whether their laws meet the mark. Again,

Resolution 1373 leaves them to this task with very little guidance, if any.
Therefore, a state-by-state system of piecemeal criminalization has resulted
and will continue to result until a consensus is reached on a definition or
until the CTC acquires stronger implementing powers. Even then, it will
take time to amend the criminal statutes that have been adopted pursuant to
the obligations under Resolution 1373, as discussed in Part III.A below.
Admittedly, the pre-September 11 approach to criminalization under the
conventions was on a state-by-state basis as well. 185 However, at that time,
states could make do without defining these key terms. Now, states are
obliged to define these terms, assuming local criminal laws are required to
be sufficiently knowable. 186
Some commentators see the emphasis on criminalizing certain acts to
have been more effective in developing common ground than in working
out a comprehensive definition, 187 in a way, suggesting that the system is
better off from failing to come to a consensus over the definition. However,
this assertion is problematic for two reasons. First, it is difficult, if not
impossible, to speak definitively about the effectiveness of the
criminalization of international terrorism and the prosecutions that occur
under the resulting statutes, because there is little, if any, reliable data on
such prosecutions. 188 Second, only if one paradoxically sees as common
ground the common right of states to choose uncommon definitions of
terrorismwhich definitions determine the ultimate target groups for their
criminal statutescan such a sentiment be true. On the contrary, it appears
patently flawed.
Other commentators see the lack of agreement on a definition of
terrorism as having become irrelevant after the September 11 attacks. 189
However, the contrary would appear to be truea definition of terrorism
was irrelevant before September 11. As Part I.A showed, virtually none of
the twelve so-called counter-terrorism conventions actually mentioned
the terms terrorism or terrorist acts, but rather dealt with certain acts
commonly committed by terrorists. 190 The resolutions after September 11
consistently used these terms without ever defining them and indirectly
185. See supra Part I.C.

186. Young, supra note 1, at 68-69 (discussing such a general requirement under the rule
of law).
187. Dickinson, supra note 58, at 1460.
188. See Murphy, Civil Liability, supra note 75, at 25 (coming to this same conclusion);
John F. Murphy, International Crimes, in THE UNITED NATIONS AND INTERNATIONAL LAW
378 (Christopher C. Joyner ed., 1997).
189. See Rostow, supra note 65, at 481.
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required states to fumble for a definition in their attempt to comply with

these resolutions. If anything, the definition of terrorism became painfully
relevant after the September 11 attacks. While some basic minimum
standards for the criminalization of international terrorism would go a long
way in harmonizing criminalization efforts, 191 such clear standards
currently do not exist except for the treatment of refugees under Paragraphs
3(f) and (g) of Resolution 1373. 192 The Security Council or the CTC could
establish greater standards if they wanted, though both have shown an
unwillingness to do so, as is explained in the following section.
c. The Counter-Terrorism Committee: A Pseudo-

Innovation
Some commentators place hope of harmonization on the CTC, though
such is unlikely given its limited capabilities. Under Paragraph 6 of
Resolution 1373, the CTC was first established to monitor implementation
of this resolution, with the assistance of appropriate expertise and for the
Committee to take reports from all states on the steps they have taken to
implement this resolution. 193 According to Paragraph 6, it is made up of
all of the members of the Security Council. 194 The CTCs fifteen members
from each Security Council state have been divided up into three
subcommittees to oversee one-third of the U.N. membership each. 195 The
CTC operates on consensus, essentially meaning that all members get a
type of veto if they object to an action being taken. 196 The CTC has taken a
relatively flexible approach to its work, instead of applying the same
mechanism to all states. The CTCs belief in transparency is apparent from
its website, which provides links to all of the reports from the U.N.s
membership to the CTC. 197 The CTCs role as the nerve center for the
global fight against terrorism is clearly something new. 198
191. Crdenas, supra note 168, at 1348.

192. See S.C. Res. 1373, supra note 128, 3(f)-(g).
193. Id. at 6.
194. Id.
195. United Nations Social and Economic Council, Tax Cooperation and Cross-Border
Tax Crime: Roles of International Organization and Potential Roles for United Nations,
http://www.un.org/ esa/ffd/tax/firstsession /ffdtaxation-tax%20corperation.doc (last visited
Dec. 1, 2008).
196. See Guidelines of the Committee for the Conduct of Its Work, 7(a)-(b), U.N. Doc.
S/AC.40/2001/CRP.1 (Oct. 16, 2001).
197. See CTC: Reports Submitted by Member States, http://www.un.org/sc/ctc/
countryreports/Creports.shtml (last visited Nov. 21, 2009).
198. See Rosand, supra note 136, at 333.
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The CTC, however, is not entirely unique, as earlier resolutions

involving sanctions also formed committees. Critics will point out that the
CTC was the first committee that was not a so-called sanctions
committee. 199 However, the CTC was established under rule 28 of the
provisional rules of procedure of the Security Council promulgated under
U.N. Charter Article 30 and under Article 29 dealing with subsidiary
organs, as were these other committees, 200 so it is difficult to see the
distinction as being significant.
Under the direction of the CTCs first chairman, Ambassador
Greenstock, the CTC has focused on building state capacity to implement
the measures called for by Resolution 1373. 201 He even asserted that the
CTC does not condemn states, 202 or even try to define terrorism. 203
Ambassador Greenstockprovided the CTCs approach to defining
terrorism: Our job is to help raise the capability of every Member State to
deal with terrorism on its territory. 204 Indeed, the CTC supposedly helps
states meet their obligations in as non-threatening a manner as possible, by
monitoring state legislation and ratification of the counter-terrorism
conventions, reviewing the executive mechanism for implementing the
Resolution 1373 obligations, and reviewing their efforts to ultimately bring
terrorists and terrorism supporters to justice. 205 How this is helping and not
judging is unclear, especially given that the CTC at least initially saw itself
as having a mandate to assesses States compliance with resolution 1373,
199. Id. at 335.

200. See, e.g., S.C. Res. 751, 6, U.N. Doc. S/RES/751 (Apr. 24, 1992) (involving
Somalia); S.C. Res. 918, 14, U.N. Doc. S/RES/918 (May 17, 1994) (involving Rwanda);
S.C. Res. 1132, 10, U.N. Doc. S/RES/1132 (Oct. 8, 1997) (involving Sierra Leone).
201. See Jane E. Stromseth, The Security Councils Counter-Terrorism Role: Continuity
and Innovation, 97 AM. SOCY INTL L. PROC. 41, 43 (2003). This same focus continues
today under the leadership of the eighth CTC chairman. See Counter-Terrorism Committee,
Technical Assistance, http://www.un.org/sc/ctc/capacity.html (last visited Nov. 21, 2009).
202. Rosand, supra note 136, at 335.
203. See Stromseth, supra note 201, at 44.
204. Andrew Clapham, Terrorism, National Measures and International Supervision, in
ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM 283, 297 (Andrea Bianchi ed.
2004) (quoting PERMANENT MISSION OF THE UNITED KINGDOM TO THE UNITED NATIONS, THE
COUNTER-TERRORISM COMMITTEE).
205. See Stromseth, supra note 201, at 43-44; Rosand, supra note 136, at 335-36
(discussing these tasks as Stages A to C).
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which are then requested to respond to the CTC in a further report, within
three months. 206 Still, this approach encouraged states to cooperate with
the CTC, which has to be considered a good result. 207
One must ask why so many states have responded to the CTC. The
simplistic answer, and possibly the ultimate one, is that the Security
Council required it. An alternative plausible explanation would be that
expectations were sufficiently low, on account of the CTCs relatively
friendly approach, that states felt confident that they would not be criticized
as long as they submitted something. If one scratches the surface of these
reports, one finds plenty of evidence to support an argument that states are
telling the CTC what it wants to hear without wanting or trying to amend
their legislation. For example, states like Kuwait, Slovakia, and Saudi
Arabia kept insisting in their reports that their current criminal laws were
sufficient to deal with international terrorism, even though the CTC kept
indicating that it thought otherwise. 208 Switzerland did the same, asserting
206. See Counter-Terrorism Committee, The Committees Mandate (2007) (on file with
the author); see also Chairman of the Counter-Terrorism Committee, Letter Dated 19
February 2004 from the Chairman of the Security Council Committee Established Pursuant
to Resolution 1373 (2001) Concerning Counter-Terrorism addressed to the Security
Council, at 3, U.N. Doc. S/2004/124 (Feb. 19, 2004) (acknowledging that the CTC had
evolved since its establishment to evaluat[e] the implementation of Resolution 1373 by
states). Please note that the current website for the CTC does not provide this language
concerning the CTCs role in evaluating states compliance; instead it focuses on the
technical assistance it can provide states in implementing Resolution 1373. See Counter-
Terrorism Committee, The Committees Mandate (2009), available at http://www.un
.org/sc/ctc/aboutus.html (last visited Nov. 21, 2009).
207. See Rosand, supra note 136, at 335. Some commentators have suggested that the
CTC was established in order to export the U.S. brand of counterterrorism legislation. See
Jos E. Alvarez, Hegemonic International Law Revisited, 97 AM. J. INT'L L. 873, 875 (2003)
(citing Serge Schmemann, United Nations to Get a U.S. Antiterror Guide, N.Y. TIMES, Dec.
19, 2001, at B4). However, Ambassador Greenstocks comments make it seem that at least
he was not aware of this particular purpose.
208. See, e.g., Chairman of the Counter-Terrorism Committee, Letter Dated 19
December 2001 from the Chairman of the Security Council Committee Established
Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism, 1(d)-2, addressed to
the President of the Security Council, U.N. Doc. S/2001/1221 (Dec. 21, 2001); Chairman of
the Counter-Terrorism Committee, Letter Dated 31 July 2002 from the Chairman of the
Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning
Counter-Terrorism, 1, addressed to the President of the Security Council, U.N. Doc.
S/2002/886 (Aug. 6, 2002); Chairman of the Counter-Terrorism Committee, Letter Dated 11
November 2003 from the Chairman of the Security Council Committee Established
Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism, at 4-6, addressed to
the President of the Security Council, U.N. Doc. S/2003/1103 (Nov. 19, 2003); Chairman of
the Counter-Terrorism Committee, Letter Dated 11 February 2005 from the Chairman of
the Security Council Committee Established Pursuant to Resolution 1373 (2001)
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in three separate reports that its general criminal laws were sufficient to
meet the requirements of Resolution 1373, 209 though it eventually caved
under the pressure to adopt separate counter-terrorism legislation. 210 These
exceptions aside, cooperation occurred with the tacit understanding that the
CTC ultimately could reverse its course and choose to report non-
compliance to the Security Council, thus subjecting states to the threat of
Security Council sanctions for violating Resolution 1373 and U.N. Charter
Article 25. As such, states had a strong incentive to cooperate regardless of
the CTCs approach. That said, the CTCs somewhat nonchalant approach
to defining terrorism[w]hat looks, smells and kills like terrorism is
terrorism 211 cannot be healthy for establishing a robust international
system to combat this scourge.
Moreover, the CTC is weaker than other committees that have been
established by the Security Council, as it lacks the ability to visit states
without their consent (even with its enhanced powers under Resolution
1566 212 ) and has refused to report non-compliance. After all, the 1267
Concerning Counter-Terrorism, at 4, addressed to the President of the Security Council,

U.N. Doc. S/2005/92 (Feb. 22, 2005); Chairman of the Counter-Terrorism Committee,
Letter Dated 29 May 2003 from the Chairman of the Security Council Committee
Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism, at 3-5,
addressed to the President of the Security Council, UN Doc. S/2003/583 (June 2, 2003).
209. See Chairman of the Counter-Terrorism Committee, Letter Dated 19 December
2001 from the Chairman of the Security Council Committee Established Pursuant to
Resolution 1373 (2001) Concerning Counter-Terrorism, at 7-8, addressed to the President
of the Security Council, U.N. Doc. S/2001/1224 (Dec. 20, 2001) [hereinafter 19 Dec. 2001
Letter]; Chairman of the Counter-Terrorism Committee, Letter Dated 31 July 2002 from the
Chairman of the Security Council Committee Established Pursuant to Resolution 1373
(2001) Concerning Counter-Terrorism, at 6-8, addressed to the President of the Security
Council, U.N. Doc. S/2002/868 (Aug. 1, 2002); Chairman of the Counter-Terrorism
Committee, Letter Dated 2 October 2003 from the Chairman of the Security Council
Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism,
at 3-5, addressed to the President of the Security Council, U.N. Doc. S/2003/967 (Oct. 6,
2003) [hereinafter 2 Oct. 2003 Letter].
210. See Chairman of the Counter-Terrorism Committee, Letter Dated 22 February 2005
from the Chairman of the Security Council Committee Established Pursuant to Resolution
1373 (2001) Concerning Counter-Terrorism, at 3-4, addressed to the President of the
Security Council, U.N. Doc. S/2005/161 (Mar. 15, 2005) [hereinafter 22 Feb. 2005 Letter].
211. Young, supra note 1, at 30 (quoting Jeremy Greenstock, KCMG Permanent
Representative of the United Kingdom of Great Britain and Northern Ireland, General
Assembly Debate on Terrorism, 1 October 2001).
212. See S.C. Res. 1566, 8, U.N. Doc. S/RES/1566 (Oct. 8, 2004). See also Counter-
Terrorism Committee, Country Visits, http://www.un.org/sc/ctc/aboutus.html (last visited
Nov. 21, 2009) (In March 2005, the Committee began carrying out on-site visits to
countries, always with their consent, in order to follow up on their implementation of the
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Committee make[s] periodic reports to the Council on information

submitted to it regarding alleged violations of the measures imposed by
[the resolution], identifying where possible persons or entities reported to
be engaged in such violations, as provided by Paragraph 6(d) of
Resolution 1267. 213 Time is needed to see whether the CTC is more
effective than other committees in bringing the desired results. As states,
like individuals, respond best when stiff penalties are expressly threatened
or felt, 214 this Article is skeptical of the CTCs overall effectiveness.
Just over two years after the Security Council established the CTC,
the CTC itself sensed some of its own weaknesses, which it called serious
problems, and proposed to the Security Council reforms to revitalize the
CTC and help improve implementation of Resolution 1373. 215 Three
months later, the CTC followed up with another call for revitalization of
the CTC with a letter to the President of the Security Council containing
the CTCs desired goals and the expanded structure designed to help
achieve those goals. 216 While the CTC has been candid in mentioning its
provisions of resolution 1373 (2001), as well as to evaluate the nature and level of technical
assistance that a specific State may need in order to implement the resolution.) (emphasis
added).
213. See S.C. Res. 1267, supra note 82, 6(d).
214. See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY:
COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 118 (1995).
215. See Chairman of the Counter-Terrorism Committee, Report by the Chair of the
Counter-Terrorism Committee on the Problems Encountered in the Implementation of
Security Council Resolution 1373 (2001), 5, 7-8, 10-15, U.N. Doc. S/2004/70 (Jan. 26,
2004) (listing such problems as the inadequacy of banking regulations alone to fully counter
the financing of terrorism; the CTCs lack of disarmament expertise; its lack of capacity to
give actual technical assistance to states (apart from acting as a switchboard between the
requests and the donors of assistance); its focus on gathering information and not on
evaluating implementation; its lack of consistency between the work of the different
subcommittees; its lack of follow-up with states to ensure that its decisions are carried out;
and the chairs focus mainly on day-to-day matters).
1373 (2001) Concerning Counter-Terrorism addressed to the President of the Security
Council, 3-5, U.N. Doc. S/2004/124 (Feb. 19, 2004) (listing such major goals as (a) Set
clear direction for its future work; (b) Intensify its efforts to promote and monitor the
implementation of all aspects of UNSCR 1373 . . .; (c) Strengthen the facilitation of
technical assistance to States as one of the Committees priorities; (d) Strengthen the
contacts and coordination with other United Nations bodies; (e) Enhance cooperation and
coordination among International, Regional, and Sub-regional Organisations in the fight
against terrorism; (f) Improve its ability to collect information for monitoring the efforts of
member States in their fight against terrorism and to facilitate appropiate [sic] Technical
Assistance, including through visits with the consent of the State concerned; (g) Improve its
capacity to make recommendations to the Security Council in all areas related to the
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perceived weaknesses and ambitious in setting out its goals for

improvement, the limited scope of its proposal to establish an expanded
structure for the CTC shows either an unwillingness or inability to rethink
the fundamental approach to tackling terrorism, which essentially has been
to press states into joining the counter-terrorism conventions and encourage
them to adopt their own legislation to criminalize certain aspects of
terrorism. The resolutions that the Security Council has adopted since
Resolution 1373 indicate that the Security Council shares this same
unwillingness or inability to make coarse adjustments in its approach. 217
This Subsection has challenged the notion that the CTC represents an
innovative approach to combating international terrorism; rather, it is
considered as more of the same. The CTCs greatest gift to the world has
been the increased transparency of states criminal laws relating to counter-
terrorism by posting many of these laws (all translated into English) on its
website, 218 which has enabled comparative legal studies like this one to
come about. It is difficult to say whether it was the CTCs soft prodding,
U.S. carrots and sticks, or a genuine drive of states to prohibit and punish
terrorists that ultimately led them to improve their counter-terrorism
criminal laws. As twenty states appear to have had separate criminal
offenses for terrorism-related acts prior to September 11, 219 it is not outside
the realm of possibility that states might have improved their criminal laws
in this manner suasponte just with the direction of a Resolution 1373 that
was missing Paragraph 6 and its CTC, or without a Resolution 1373
altogether. Ultimately, states desiring the status quo with regard to their
implementation of UNSCR 1373; (h) Expedite its work and streamline its procedures; (i)
Adopt a proactive communication strategy; (j) Develop and maintain a high degree of
expertise in every area covered by the UNSCR 1373 (2001), including through the
improvement of the working conditions of the CTCs groups of experts; as well as
proposing structural reforms to achieve these goals, such as establishing the Counter
Terrorism Committee Executive Directorate with an Executive Director). See also S.C. Res.
1535, 1-3, U.N. Doc. S/RES/1535 (Mar. 26, 2004) (endorsing this report, and revising
the CTCs structure as requested).
217. See, e.g., S.C. Res. 1456, 2(a) & (c), U.N. Doc. S/RES/1456 (Jan. 20, 2003)
(calling upon states to become a party, as a matter of urgency, to all relevant international
conventions and protocols relating to terrorism . . . and to implement fully the sanctions
against terrorists and their associates . . . . as provided in previous resolutions); S.C. Res.
1455, supra note 153, 1; S.C. Res. 1566, supra note 212, 2, 4; S.C. Res. 1617, 1-2,
U.N. Doc. S/RES/1617 (July 29, 2005).
218. See Counter-Terrorism Committee, International Laws, http://www.un.org/sc/ctc
/laws.html (last visited Nov. 21, 2009).
219. See infra text accompanying note 234.
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criminal law successfully have avoided sanctions for their lack of full
cooperation, even with Paragraph 6 intact, suggesting that all states did
what they wanted or what they were willing to do in the end.
C. Two General Observations on the Criminalization of

International Terrorism
This Section concludes with two general observations with regard to
states efforts to criminalize terrorist acts as required by Security Council
resolutions and the applicable conventions. All of these observations are
formulated as responses to assertions from particular commentators.
1. Terrorists are Criminals

The first relates to the U.S. response to September 11. Mary Ellen
OConnell sees the Bush Administrations declaration of a war on terror as
undoing the decades of effort to criminalize terrorism and terrorist acts with
its use of the label enemy or unlawful combatant to describe alleged
terrorists, thus pull[ing] terrorists from a lowly position within the state
criminal system, [and] boosting them to a place more solidly on the
international plane. 220 It would appear that Drumbl would agree with
OConnells characterization of the situation, as he asserts that the
[September 11] attacksand terrorism in generalshould be constructed
as criminal attacks and not as armed attacks. 221 However, this is to
confuse Bushs rhetoric with the set classification of persons under
international humanitarian law. Indeed, the Bush Administration sees these
alleged terrorists as something other than regular combatantsas a third
category of persons that is added to the Geneva Conventions two
categoriescombatants and civilians. 222 As this author has pointed out
elsewhere, 223 there only are the two mutually exclusive categories (civilian
and combatant) under First Additional Protocol Articles 43 and 50, with the
only support for a third category of enemy or unlawful combatant coming
from a U.S. Supreme Court case that predates the 1949 Geneva
220. Mary Ellen OConnell, Enhancing the Status of Non-State Actors Through a Global
War on Terror?, 43 COLUM. J. TRANSNATL L. 435, 435-36, 453-57 (2005).
221. See Drumbl, supra note 3, at 1.
222. See, e.g., Clapham, supra note 204, at 301 (Under international humanitarian law,
States engaged in armed conflict have the right to capture and detain enemy combatants,
whether or not the combatants are POWs. (citing Reply by the U.S. to the Inter American
Commission on HR, at 24)).
223. See James D. Fry, Contextualized Legal Reviews for the Methods and Means of
Warfare: Cave Combat and International Humanitarian Law, 44 COLUM. J. TRANSNATL L.
453, 515 (2006).
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Conventions and their 1977 Additional Protocols. 224 While OConnell

recognizes that the Bush Administration was inventing its own definition
for this phrase, 225 she neglects to acknowledge that this phrase itself is
essentially fictitious, thus bringing into question the legal significance of
this rhetoric. The same is true for Drumbls comments. Admittedly,
OConnell acknowledges that [t]errorist groups . . . remain largely
regulated under national law[,] 226 though it is unclear how this view can
be reconciled with her overall thesis that the war on terror has elevated
terrorists out from national criminal law to the international plane. Indeed,
terrorist groups appear regulated entirely, not just largely, by national law.
2. No Necessary Link Between Domestic Definitions and

International Law
The second observation deals with the link between international law
and the solution to ending international terrorism. Some commentators
seem to assume that a solution to international terrorism must come from
international law, 227 even though nothing requires such a link. On the
contrary, as this Article has shown, the Security Council and the twelve
conventions dealing with acts often associated with international terrorism
have been relatively clear in leaving states to devise their own definitions
for terrorism. 228 The fact that international conventions require states to
criminalize certain terrorist acts does not necessarily mean that any
principles of international law apply to the perpetrators of these acts from
these conventions, as some commentators appear to argue. 229 On the
contrary, the national laws that criminalize these terrorist acts appear to be
the alpha and omega when it comes to criminalizing international terrorism,
assuming refugee status is not involved.
224. Ex parte Quirin, 317 U.S. 1, 30-31 (1942); see also Fry, supra note 223, at 515
(explaining that even Quirin does not support the creation of such a third category).
225. OConnell, supra note 220, at 455-56.
226. Id. at 452.
227. See Young, supra note 1, at 24-25.
228. Please note that this Article recognizes that states are obliged to [e]nsure, in
conformity with international law, that refugee status is not abused by the perpetrators,
organizers or facilitators of terrorist acts, as provided by paragraph 3(g) of Resolution
1373. S.C. Res. 1373, supra note 128, 3(g). However, ensuring such conformity is not at
all the same as international law being the driving force behind dealing with terrorism in
general.
229. OConnell, supra note 220, at 439 (pointing out that [a] variety of treaties today
mandate that governments prohibit, through national criminal law, the existence of such
groups and/or the right of such groups to carry out certain specified acts, and concluding
that [s]ome limited principles of international law, therefore, are relevant).
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This Part has looked at the international efforts to criminalize

international terrorism after the September 11 attacks in order to show how
the obligations to criminalize have not changed dramatically as a result of
the attacks. The following Part provides an overview of how states have
responded to these obligations in adopting legislation that criminalizes Al
Qaeda and international terrorism.
III. Some State Practice on Criminalizing Al Qaeda

This final Part reports some of the findings from a review of all of the
state reports submitted to the CTC that have been posted on its website. 230
A comprehensive analysis of the information contained in these reports is
reserved for a separate publication. However, this Part provides several
generalizations gleaned from this review, which are then used to respond to
particular assertions of certain commentators dealing with the response of
the international community to international terrorism after the September
11 attacks.
A. General Observations Concerning Terrorism as a Separate

Crime
All states, apart from Eritrea, 231 initially claimed to have laws
sufficient to prosecute terrorism and otherwise meet the requirements of
Resolution 1373, among others. Belgium humbly acknowledged in its first
CTC report that its existing criminal legislation was inadequate in reaching
the acts specified by Resolution 1373, 232 though Belgium eventually
remedied that shortcoming. 233 Interestingly, some states make terrorism a
230. It is acknowledged that there may be new legislation that has not been reported to
the CTC that may affect the veracity of the analysis here; or that states may have
mischaracterized the nature of their laws. Both the author and the reader will have to live
with these possibilities for the time-being for practical reasons, as there is no database for
the relevant criminal laws of states apart from the information provided to the CTC. That
said, it is assumed that states craft their reports with an incentive to give the CTC the most
complete picture possible of their counter-terrorism criminal laws, and will mention
criminalization of Al Qaeda if such has occurred.
231. See Chairman of the Counter-Terrorism Committee, Letter Dated 22 May 2002 from
the Chairman of the Security Council Committee Established Pursuant to Resolution 1373
(2001) Concerning Counter-Terrorism, at 4, addressed to the President of the Security
Council, U.N. Doc. S/2002/581 (May 24, 2002) (explaining that Eritrea was supposedly still
drafting its Penal Code).
232. See Chairman of the Counter-Terrorism Committee, Letter Dated 27 December
of the Security Council, U.N. Doc. S/2001/1266 (Dec. 27, 2001).
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separate criminal offense, while others do not. Prior to September 11,

twenty states had established terrorism as a separate crime: Chile, China,
Colombia, Croatia, Cyprus, Djibouti, Georgia, India, Italy, Myanmar,
Netherlands, Pakistan, Peru, Portugal, Qatar, the Russian Federation,
Rwanda, the United Kingdom, the United States and Vietnam. 234 As of
2008, the number of states that had terrorism as a separate crime reached at
least 114an increase of at least 94 states. 235 Those states are as follows:
Albania, Algeria, Andorra, Antigua and Barbuda, Armenia,
Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium,
Belize, Bhutan, Brazil, Brunei Darussalam, Bulgaria, Cambodia,
Cameroon, Canada, Cuba, Czech Republic, Democratic Republic
of the Congo, Denmark, Dominican Republic, Egypt, El
Salvador, Estonia, Ethiopia, Finland, France, Gambia, Germany,
Greece, Guatemala, Guinea, Hungary, Iceland, Indonesia, Iraq,
Ireland, Israel, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan,
Latvia, Lebanon, Liechtenstein, Lithuania, Luxembourg,
Malawi, Malaysia, Maldives, Marshall Islands, Mauritius,
Mexico, Monaco, Morocco, Mozambique, Myanmar, Nauru,
Nepal, New Zealand, Nicaragua, Norway, Oman, Panama, the
Republic of Moldova, Romania, Saint Kitts and Nevis, Saint
Vincent and the Grenadines, Samoa, San Marino, Serbia and
Montenegro, Seychelles, Singapore, Slovenia, Spain, Sri Lanka,
Sudan, Sweden, Switzerland, Syrian Arab Republic, Tajikistan,
Thailand, the former Yugoslav Republic of Macedonia, Tonga,
Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, Uruguay and
236
Uzbekistan.
For these states, each invariably has its own formulation for the offense. It
is irrelevant what those formulations are for the purpose of this Article; the
important point is that virtually no two states have the exact same
1373 (2001) Concerning Counter-Terrorism, at 4, addressed to the President of the Security
Council, U.N. Doc. S/2004/156 (Feb. 27, 2004) [hereinafter 23 Feb. 2004 Letter].
234. This is not to say that these states did not improve their criminal legislation after the
September 11 attacks, only that they allegedly had terrorism before as a separate crime.
235. Please note that it is somewhat difficult to determine whether a state has a separate
crime of terrorism just from their reports, as some reading between the lines is required. In
addition, some states might have been left off or put on this list by mistake, despite the best
of intentions. If this is the case, the author offers his sincerest apologies.
236. Please remember that this figure is based entirely on what states have claimed in
their CTC reports, with no attempt having been made to verify the validity of those
assertions out of an inability (both linguistically and practically) to check the criminal
legislation in all of these states. Why these states adopted new legislation, although
interesting, is not addressed here as it falls outside of the limited scope of this Article.
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definition of the offense. In fact, several states have multiple definitions of

terrorismfor example, the United States has numerous definitions of
terrorism in its various pieces of legislation and in its various agencies. 237
Interestingly, many of those states that have terrorism as a separate crime
make clear in their CTC reports that they do not consider a separate crime
for terrorism as necessary in prosecuting such criminal activity, though this
has not stopped them from creating such a separate crime. This would
suggest that these states amended their criminal legislation in an effort to
be perceived as having taken steps to increase the possible measures
against suspected terrorists. Alternatively, these states may be going for a
belt-and-suspenders approach in order to give their prosecutors multiple
avenues for charging suspected terrorists. The reasons for states adopting
new counter-terrorism legislation are ancillary to this Articles thesis. In
order to finish out the groupings, that leaves, at most, 78 states that have
reported to the CTC that they have not adopted new legislation or
regulations criminalizing terrorism after September 11. Admittedly, some
of these states have pending legislation according to the CTC reports, 238
but there is no guarantee that such legislation will ever be adopted. This
means that these states are left to use their general criminal laws to
prosecute international terrorism and terrorist acts, which may or may not
be sufficient for the task. These are some of the basic results from the
review of all CTC reports. The next two paragraphs provide general
observations that directly challenge certain assertions of commentators.
First, some commentators point out that many states have revised
their criminal laws pursuant to Resolution 1373. 239 However, no one seems
to acknowledge that a large number of states refused to or failed to revise
their laws after the adoption of Resolution 1373, which is the point of
listing the states in the above paragraph.
Second, it must be noted how Rosand asserts both that all U.N.
members and all states have filed reports with the CTC. 240 However, both
237. See TODD MASSE & WILLIAM KROUSE, U.S. CONGRESSIONAL RESEARCH SERVICE,
THE FBI: PAST, PRESENT AND FUTURE 2 n.2 (2003), available at http://www.fas.org
/irp/crs/RL32095.pdf.
238. See, e.g., 23 Feb. 2004 Letter, supra note 233, at 4.
239. See, e.g., Rosand, supra note 136, at 337 (asserting that a large number of states
have been revising their laws in an effort to comply with Resolution 1373); Bianchi, supra
note 144, at 893.
240. Confusingly, Rosand is somewhat contradictory in asserting that [t]he CTC has
received reports from all 191 member states, though acknowledging in a footnote that Sao
Tom, Principe, Swaziland, and Vanuatu had not submitted a report to the CTC as of April
1, 2003. Rosand, supra note 136, at 335 & n.18. However, later in the article he seems to
forget the footnote and asserts that the CTC monitors all states concerning certain points
by reviewing states second reports. See id. at 336 (emphasis added). He again asserts in a
FRY Final 1/4/2010 10:48:49 AM
assertions are inaccurate: Sao Tome and Principe had not filed a report as
required by Resolution 1373, and it is a U.N. member. The Holy See, a
state that is not a U.N. member, has not filed a report. This does not include
the handful of entities that arguably enjoy statehood that have not filed
reports. Interestingly, the Cook Islands and Niue both filed reports, even
though they are indisputable states that are not U.N. members, and
presumably are not directly bound by Security Council decisions. However,
there is no indication that these two states acted under a perceived
obligation. On the contrary, their reports mention background information
about the basic characteristics of their states, almost as if they assume that
the United Nations is unaware of their very existence. 241
B. Criminalization of Al Qaeda in Particular

Based on the discussion in Parts I.C.2 and II.B.1.a above, one might
imagine that all states would see the need to criminalize Al Qaeda, or at
least be expected to criminalize certain activities or support of Al Qaeda in
particular, under Resolutions 1373 and 1390, if not the other resolutions.
However, only a handful of states have passed laws or regulations that
specifically criminalize Al Qaeda. Fifty states mention Al Qaeda in their
CTC reports, with Tunisia, Pakistan, and Iran having the most references to
Al Qaeda (eight, seven, and six, respectively). 242 This suggests that many
separate article that the Council has seen unprecedented levels of cooperation between all
States and the Counter-Terrorism Committee, but this time he provides no qualifier
member or qualifying footnote. Rosand, Global Legislator, supra note 184, at 572 n.136
(emphasis added).
241. See, e.g., Chairman of the Counter-Terrorism Committee, Letter Dated 2 January
of the Security Council, U.N. Doc. S/2002/7 (Jan. 2, 2002) (for Niue); Chairman of the
Counter-Terrorism Committee, Letter Dated 28 December 2001 from the Chairman of the
Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning
Counter-Terrorism, at 3-5, addressed to the President of the Security Council, U.N. Doc.
S/2001/1324 (Dec. 31, 2001) [hereinafter 28 Dec. 2001 Letter] (for the Cook Islands).
242. This figure could indicate how these states might be eager to deflect any potential
criticism away from themselves to Al Qaeda. See CTC: Reports Submitted by Member
States, http://www.un.org/sc/ctc/ countryreports/Creports.shtml (last visited Dec. 2, 2008)
(showing a listing of all CTC Reports submitted by U.N. Member States). Interestingly, the
United States mentions Al Qaeda only once in its CTC reports, contrary to what one might
have expected. Chairman of the Counter-Terrorism Committee, Letter Dated 19 December
Resolution 1373 (2001) Concerning Counter-Terrorism, at 4, addressed to the President of
the Security Council, U.N. Doc. S/2001/1220 (Dec. 21, 2001) [hereinafter Second Letter
Dated 19 Dec. 2001].
FRY Final 1/4/2010 10:48:49 AM
states continue to rely on more general laws to combat Al Qaeda in

particular, even though they are aware of the specific threat coming from
Al Qaeda.
Notably, no states appear to criminalize membership in Al Qaeda per
se directly through criminal legislation. Antigua and Barbudas Prevention
of Terrorism Act 2001, which entered into force on December 27, 2001,
provided for an offense as a transaction in business or property in Antigua
and Barbuda belonging to terrorists or a terrorist organization, with the
legislation naming specifically the property of the Taliban and Al Qaeda. 243
The Act provided for a maximum prison sentence of twenty-five years and
a forfeiture of the property, inter alia, for violators of this ban. 244 However,
new legislationPrevention of Terrorism Act 2005superseded this
earlier legislation, which removes all references to Al Qaeda and instead
refers more generally to those involved with terrorism and terrorist
groups. 245 Therefore, apparently no states currently criminalize
membership in or support of Al Qaeda directly through legislation.
Some states indirectly criminalize Al Qaeda through regulations,
decrees, and orders explicitly banning the group. 246 It is characterized as
indirect because Al Qaeda is not expressly mentioned in the criminal
legislation, unlike with the old Antigua and Barbuda statute.Rather, the
criminal legislation applies to certain groups that the government expressly
recognizes as falling under that legislation, with the designation process
being established by legislation or through the vetting of judicial review.
Such criminalization falls within the scope of this study because the
criminal legislation appears to give legal significance to such political (or
non-legislative) determinations, thus incorporating Al Qaeda into the
criminal legislation by reference. The last few examples do not necessarily
show criminalization, though they illustrate how states are trying, perhaps
unsuccessfully, to criminalize Al Qaeda.
1. Switzerland
Switzerland specifically bans Al Qaeda directly through a decree. On
November 7, 2001, the Federal Council declared Al Qaeda a terrorist
organization in Switzerland that was subject to this criminal legislation. 247
243. See Prevention of Terrorism Act 2001, No. 15 (2001), 5 (Ant. & Barb.).
244. See id. 11.
245. See Prevention of Terrorism Act 2005, c. 2, 3 (Eng.), available at www.statewatch.
org/news/2005/mar/uk-pta-2005.pdf (enumerating the particular offenses that fall under this
statute).
246. See discussion infra Part III.B.1-7.
247. 19 Dec. 2001 Letter, supra note 209, at 10; see also 22 Feb. 2005 Letter, supra note
210, at 8 (citing Decree No. 1A.194/2002, Nov. 15, 2002).
FRY Final 1/4/2010 10:48:49 AM
In Switzerlands last CTC report, it noted that on December 5, 2003, the

Federal Council extended the ordinance banning Al Qaeda and related
organizations until December 31, 2005. 248 The Federal Tribunal has
affirmed the validity of this provision in rejecting a request for release by a
convict with suspected ties to Al Qaeda. 249 Under Article 260 of the Swiss
Penal Code, highly dangerous terrorist groups are criminal organizations,
and their members can be imprisoned for up to five years, inter alia. 250 An
ordinance typically is not considered the same as legislation and the
Federal Council is not a legislative body, but rather Switzerlands executive
branch that is elected by the United Federal Assembly. 251 Nonetheless, it
arguably still constitutes criminalization of Al Qaeda.
Interestingly, Switzerland initially was very strong in opposing the
CTCs efforts to pressure it into passing legislation specifically dealing
with international terrorism. Switzerland believed from the beginning that
its general criminal laws were sufficient to combat international terrorism.
However, in an effort to appease international pressure, the Swiss
Government presented to the Parliament a law on international terrorism in
2002, but Parliament refused to adopt this into the Penal Code because it
believed that the general criminal laws were adequate in punishing such
violent offenses. 252 As explained in the previous paragraph, Switzerland
eventually passed counter-terrorism legislation, though it made a point to
state that it was doing so in order to improve the perception that it had
adequate legislation to prosecute alleged terrorists. 253 Although other states
are not as forthcoming in making this argument, it would appear that other
states share this same approach to adopting new counter-terrorism
legislation, as is suggested by the point that so many states asserted that
their general criminal laws were sufficient to prosecute acts of terrorism in
their initial report to the CTC.
2. Australia
Australias Security Legislation Amendment (Terrorism) Act 2002
added certain amendments to its Criminal Code dealing with terrorist
organizations, most notable of which was Section 102 which defined a
terrorist organization and provided two ways for such an organization to
248. 22 Feb. 2005 Letter, supra note 210, at 20.

249. Id. at 7 (citing Decree Nos. 1S.3/2004 and 1S.4/2004, Aug. 13, 2004).
250. Letter of 2 Oct. 2003, supra note 209, at 3.
251. See The Swiss Federal Council, http://www.admin.ch/ch/e/cf/index.html (last visited
Nov. 21, 2009); see also BBC News, Country Profile: Switzerland, http://news.bbc.co.uk/
2/hi/europe/country_profiles/1035212.stm.
252. Letter of 2 Oct. 2003, supra note 209, at 5.
253. See 22 Feb. 2005 Letter, supra note 210, at 21.
FRY Final 1/4/2010 10:48:49 AM
be designated: by court determination that the organization meets certain

criteria or by specification through a regulation. 254 An Australian
government lawyer confirmed that Al Qaeda is listed in these
regulations. 255 Membership in the organization carries a maximum
sentence of ten years, while recruiting, training, funding, and other support
of such an organization carries a twenty-five year maximum sentence. 256
3. United Kingdom
The main piece of counter-terrorism legislation in the United
Kingdom is the Terrorist Act 2000, which supersedes the Prevention of
Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland
(Emergency Provisions) Act 1996. Article 11(1) of Chapter 11 of the
Terrorism Act 2000 criminalizes membership in one of a list of proscribed
organizations. 257 Article 3 of this same chapter of the Terrorism Act 2000
provides that proscribed organizations will be provided in the form of a list
that can be amended by the order of the Secretary of State. 258 Al Qaeda is
one of the organizations listed in the amended 2005 Order providing the list
of proscribed organizations. 259 According to Article 11(3) of Chapter 11 of
the Terrorism Act 2000, persons convicted of membership with one of the
proscribed organizations is subject to imprisonment for a maximum of ten
years and/or to a fine.
4. United States
The United States likely is perceived as the state with the greatest
interests in criminalizing Al Qaeda on account of the September 11 attacks
having occurred on its soil, yet its laws appear to fall short of the mark. On
October 5, 2001, the Secretary of State, after consulting the Attorney
General and the Secretary of the Treasury, designated twenty-five terrorist
organizations including Al-Qaeda as terrorist organizations under the
254. Chairman of the Counter-Terrorism Committee, Letter Dated 21 April 2003 from
(2001) Concerning Counter-Terrorism, at 4-5, addressed to the President of the Security
Council, U.N. Doc. S/2003/513 (Apr. 28, 2003) [hereinafter Letter of 21 Apr. 2003].
255. Interview with Anonymous Source, location not identified (Apr. 24, 2006). The
source also asserted that Australias laws changed in 2005 with the Counter-Terrorism Act
(No. 2) 2005, though this change is not discussed in the text above because it had not been
reported to the CTC at the time of writing this Section. Id.
256. Letter of 21 Apr. 2003, supra note 254, at 4-5.
257. See Terrorism Act 2000, c. 11, 11 (Eng.).
258. See id. 3.
259. See Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2005,
available at http://www.opsi.gov.uk/si/si2005/20052892.htm.
FRY Final 1/4/2010 10:48:49 AM
Antiterrorism and Effective Death Penalty Act of 1996. 260 The Secretary of
State periodically updates this list. 261 While this report went on to say that
giving material support or resources to any of these foreign organizations
is a felony under U.S. law, 262 the report did not mention whether
membership in the organization itself was a punishable offense; it was only
a reason for deportation. A 2001 report also emphasized how the new USA
PATRIOT Act added with regard to excluding terrorists from the United
States, and that these lists are for the freezing of assets and immigration
purposes, 263 not for criminalization. Regardless, material support of a
foreign terrorist organization is punishable by fifteen years imprisonment
and/or a fine. 264
A later report provides a broad interpretation for material support or
resources under Title 18, 2339B of the U.S. Code, and makes it clear
that this law applies regardless of whether or not a designated foreign
terrorist organization is involved with the violation. 265 This same report also
makes it clear that this federal statute allows for punishment of acts
committed by terrorist organizations operating from the United States, 266
not punishment for membership or the mere existence of the organization
in the United States.In sum, the U.S. reports on its legislation make it
appear that the focus is on increasing the governments ability to freeze
assets, limit the entry of alleged terrorists, and investigate these terrorists.
There is no evidence in the reports of an emphasis on criminalizing Al
Qaeda per se.
5. Canada
Canadas regulations criminalize Al Qaeda through the creation of a
list that contains Al Qaeda. Canadas Criminal Code (Section 83.05) allows
the Governor in Council to promulgate lists of organizations or individuals
where it is reasonably believed that they were involved with a terrorist
activity, among other things. 267 The list of the entities that the Governor in
260. Second Letter Dated 19 Dec. 2001, supra note 242, at 4.

261. See 19 Dec. 2001 Letter, supra note 209, at 9-10.
262. Id. at 4, 6, 10.
263. Second Letter Dated 19 Dec. 2001, supra note 242, at 4, 7.
264. Id. at 10.
265. Chairman of the Security Council Committee, Letter Dated 17 June 2002 from
(2001) Concerning Counter-Terrorism, at 7, addressed to the President of the Security
Council, U.N. Doc. S/2002/674 (June 17, 2002).
266. Id. at 8-9.
267. Chairman of the Security Council Committee, Letter Dated 17 February 2004 from
the Chairman of the Security Council Committee Established Pursuant to Resolution 1373
FRY Final 1/4/2010 10:48:49 AM
Council has established under this law lists Al Qaeda, as Canadas report
indicates. 268 What is then done with this list and the penalties involved with
being on this list are unclear from the reports to the CTC.
6. Israel
Israels Penal Law Section 145 deals with unlawful associations,
and defines it as incitement to bring down, forcibly, the lawful Israeli
government or that of another state. 269 Under Section 146, the punishment
for incitement or encouragement of such an association is three-years
imprisonment, and it is one-year imprisonment for membership in such a
group under Section 147. 270 The report is somewhat confusing in that
Section 148 supposedly makes payment of membership dues to unlawful
organizations punishable by six-month imprisonment; 271 how this is
substantially different from the one year for membership under Section 147
is unclear. Section 3 of the Prevention of Terrorism Ordinance (1948)
makes membership in a terrorist organization punishable by five-years
imprisonment, even if not an active participant in the group. 272 On October
4, 2001, the Minister of Defence of Israel announced that Al Qaeda was an
unlawful association. 273 It is unclear from the reports whether the Minister
of Defence is the one to determine whether certain entities are unlawful
associations. It would appear not, since the second report that Israel
submitted to the CTC attempted to clarify what Section 145 means by
unlawful associations, and the response included a list of elements that
did not include designation by the Minister of Defence. 274 Nonetheless, it
stands out from the other reports as an attempt to criminalize Al Qaeda.
(2001) Concerning Counter-terrorism, at 34, addressed to the President of the Security

Council, U.N. Doc. S/2004/132 (Feb. 20, 2004).
268. Id. at 19.
269. Chairman of the Security Council Committee, Letter Dated 27 December 2001 from
the Chairman of the Security Council Committee, at 13, addressed to the President of the
Security Council, U.N. Doc. S/2001/1312 (Dec. 27, 2001) [hereinafter 27 Dec. 2001 Letter];
see also Chairman of the Security Council, Letter Dated 2 October 2003 from the Chairman
of the Security Council Committee, at 4, addressed to the President of the Security Council,
U.N. Doc. S/2003/968 (Oct. 6, 2003) [hereinafter Second Letter Dated 2 Oct. 2003].
270. 27 Dec. 2001 Letter, supra note 269, at 13.
271. Id. at 5; see also Second Letter Dated 2 Oct. 2003, supra note 269, at 4.
273. See id. at 10.
274. Chairman of the Security Council Committee, Letter Dated 31 July 2002 from the
Chairman of the Security Council Committee, at 7, addressed to the President of the
Security Council, U.N. Doc. S/2002/871 (Aug. 1, 2002).
FRY Final 1/4/2010 10:48:49 AM
7. Cook Islands
The Cook Islands appear to have come close to criminalizing Al
Qaeda through a set of regulations that were to be promulgated under the
United Nations Act 2002. These draft regulations have been characterized
as if they were about to enter into force, which regulations defined a
specified entity to include every Al Qaeda entity and Osama bin Laden,
inter alia. 275 These regulations prohibited such activities as fund-raising,
dealing with property, recruiting, and participation in these entities. 276 The
punishment for individuals violating these regulations included a maximum
prison sentence of 12 months. 277 However, a later report to the CTC
mentioned neither the United Nations Act 2002 nor these regulations,
which suggests that this legislation never was passed. 278
C. Preempting Criticism
Some states will argue that their general criminal laws certainly cover
Al Qaeda, even if Al Qaeda is not mentioned. They possibly are correct,
especially given how lawyers are known for making round pegs fit into
square holes, so to speak. However, again, Paragraph 4 of Resolution 1390
makes it appear that the criminalization requirements of Resolution 1373
must cover Al Qaeda in particular, with other resolutions arguably
requiring similar criminalization of Al Qaeda. 279 The best way to ensure
that this requirement is met is by mentioning Al Qaeda directly in the
legislation. The reports indicate that virtually every state has general
criminal laws that can be used to prosecute terrorists, terrorist acts, and
their supporters. 280
However, the CTC usually was unsatisfied by this answer to the
question of whether their legislation sufficiently meets the requirements of
Paragraphs 1(b) and 2(e) of Resolution 1373. In most cases, the CTC
would respond that these provisions required criminalization of terrorism or
terrorist acts as crimes separate from their general criminal laws. For
example, Ireland reported that it had criminal legislation as required under
the Convention on Offences and Certain Other Acts Committed on Board
Aircraft, the Convention for the Suppression of Unlawful Seizure of

276. Id.
277. Id.
278. See United Nations, Letter Dated 13 September 2004 from the Chairman of the
Security Council Committee, at 3, 7, addressed to the President of Security Council, U.N.
Doc. S/2004/745 (Sept. 14, 2004).
279. S.C. Res. 1390, supra note 141, 4.
280. See id. 2.
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Aircraft, the Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation, the Convention on the Physical Protection of
Nuclear Material, and the Protocol to the Montreal Convention, among
others. 281 Irelands reply indicates that the CTC wanted Ireland to have
distinct criminal offenses for terrorism, terrorist acts, and their support
separate from those found already in its general criminal law. 282 Just as
Resolution 1373 Paragraphs 1(b) and 2(e) can be read in a way so as to
require such distinct legislation, 283 Al Qaeda must expressly be
criminalized under a similarly strict reading of Resolutions 1373 and
1390. 284 Besides, why run the risk that a states decision-maker determines
that a states criminal laws do not cover Al Qaeda members and
supporters?
While there are often good reasons to refrain from criminalizing a
specific group or membership with a specific groupnamely
considerations for the rights of assembly and associationif there ever
were a reason to curtail these rights, one would think it would be
persuasive in the case of Al Qaeda. After all, it is not as though
membership with particular organizations never has been criminalized
during exceptional times such as these, as membership with the Nazi party
during the Second World War has been criminalized, along with other
organizations. 285 Regardless, based on the fact that most states do not
mention Al Qaeda in their criminal legislation, they either do not interpret
Resolutions 1373 and 1390 in this manner or simply ignore this obligation.
Either way, the situation ought to be remedied.
281. Chairman of the Counter-Terrorism Committee, Letter Dated 21 December 2001

from the Chairman of the Security Council Committee, at 8-9, addressed to the President of
the Security Council, U.N. Doc. S/2001/1252 (Dec. 28, 2001).
282. See Chairman of the Security Council Committee, Letter Dated 17 June 2002 from
the Chairman of the Security Council Committee, at 10-11, addressed to the President of the
Security Council, U.N. Doc. S/2002/675 (June 17, 2002).
283. S.C. Res. 1373, supra note 128, 1(b), 2(e).
284. See id. 3(c), (f), 4(j); S.C. Res. 1390, supra note 141, 4.
285. See, e.g., Charter of the International Military Tribunal art. 6, 9-10, Aug. 8, 1945, 82
U.N.T.S. 280; Control Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity, art. 2(1)(d) (Dec. 20, 1945), 3 Official
Gazette Control Council for Germany 50 (1946); United States v. Hermann Goering et. al.
(indictment), reprinted in 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
INTERNATIONAL MILITARY TRIBUNAL 27, 41 (1948) (bringing charges against the defendants
for their common plan in a criminal group or organization, which many of the defendants
were convicted of); Attorney Gen. of Israel v. Eichmann, 36 I.L.R. 5, 244 (Dis. Ct. 1962)
(charged and convicted for his membership with a hostile organization); Attorney Gen. of
Israel v. Eichmann, 36 I.L.R. 277, 18 (Sup. Ct. 1962) (dismissing the appeal).
FRY Final 1/4/2010 10:48:49 AM
CONCLUSION
While the attitude towards international terrorism certainly has
changed in the wake of the September 11 attacks and the large-scale
terrorist attacks that have occurred since, this does not necessarily translate
into a fundamental change in the approach to dealing with terrorism on the
international level. Indeed, the same type of fragmented response continues
from before the September 11 attacksthat of criminalization on the
national level. What might be needed in order to properly combat
international terrorism is a more top-down, unified approach, through
continued involvement by the Security Council, that goes beyond mere
criminalization on the domestic level, where such things as a global
definition of terrorism and perhaps authorization to use force against these
individuals and organizations are provided, similar to how the Security
Council recently authorized states to take all necessary means against
pirates in and around Somalia. 286 However, discussion of this possibility
goes beyond the scope of this Article, which simply has been to show that
the general piecemeal approach to criminalizing terrorism on a state-by-
state basis essentially has stayed the same since before the September 11
attacks, notwithstanding the establishment and revitalization of the CTC.
As states become further entrenched in this fragmented approach by
continuing to develop their own criminal laws, definitions of terrorism, and
jurisprudence surrounding these laws, the harder it will be for states to
unite around a common definition of terrorism once such a definition is
agreed upon. In the end, a comprehensive definition may never be
adopted. 287 Nonetheless, states must do their utmost to abide by the spirit
and letter of these counter-terrorism resolutions and conventions so that Al
Qaeda and other terrorist organizations feel as much of their intended
impact as possible.
286. See S.C. Res. 1851, 6, U.N. Doc. S/RES/1851 (Dec. 16, 2008) (decides that for a
period of twelve months from the date of adoption of resolution 1846, States and regional
organizations cooperating in the fight against piracy and armed robbery at sea off the coast
of Somalia for which advance notification has been provided by the TFG [Transitional
Federal Government of Somalia] to the Secretary-General may undertake all necessary
measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and
armed robbery at sea, pursuant to the request of the TFG, provided, however, that any
measures undertaken pursuant to the authority of this paragraph shall be undertaken
consistent with applicable international humanitarian and human rights law) (second
emphasis added). See generally Douglas R. Burgess, Jr., Hostis Humani Generi: Piracy,
Terrorism and a New International Law, 13 U. MIAMI INTL & COMP. L. REV. 293 (2006)
(asserting that piracy is a useful parallel for defining terrorism and determining the
appropriate response by the international community).
287. See, e.g., Fassbender, supra note 91, at 97.

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THE SWINDLE OF FRAGMENTED

Abstract: By comparing the counter-terrorism conventions and Security

378 NEW ENGLAND LAW REVIEW [Vol. 43:377

5. Maritime Convention and its Protocol...........................386

2009] FRAGMENTED CRIMINALIZATION 379

III. Some State Practice on Criminalizing Al Qaeda ......................422

George Orwell, Inside the Whale, Part III (1940)

1. See Reuven Young, Defining Terrorism: The Evolution of Terrorism as a Legal

380 NEW ENGLAND LAW REVIEW [Vol. 43:377

2009] FRAGMENTED CRIMINALIZATION 381

instruments with post-September 11 ones indicates how the obligation on

I. Criminalization Before September 11

6. By criminalize Al Qaeda or criminalization of Al Qaeda, this Article focuses on

382 NEW ENGLAND LAW REVIEW [Vol. 43:377

conventions adopted before September 11. 11 Not surprisingly, Al Qaeda is

A. Conventions Addressing Certain Acts Commonly Associated

11. See infra Part I.A.

2009] FRAGMENTED CRIMINALIZATION 383

1. The Hague Convention

(EC) (providing a list of some non-criminal penalties).

384 NEW ENGLAND LAW REVIEW [Vol. 43:377

As explained in the Introduction to this Section, whether Article 2 requires

2. Montreal Convention and its Protocol

2009] FRAGMENTED CRIMINALIZATION 385

committed an offense. 27 Article 2 of the Protocol to the Montreal

3. Internationally Protected Persons Convention

386 NEW ENGLAND LAW REVIEW [Vol. 43:377

predecessors by making explicit the requirement for states to criminalize

5. Maritime Convention and its Protocol

2009] FRAGMENTED CRIMINALIZATION 387

(a) seizes or exercises control over a ship by force or threat

35. Id. art. 3(1).

388 NEW ENGLAND LAW REVIEW [Vol. 43:377

Convention Article 3(2), Protocol Article 2(2) expands the punishable

40. Fixed Platforms Protocol, supra note 37, art. 2(2).

2009] FRAGMENTED CRIMINALIZATION 389

circumstances justifiable by considerations of a political,

390 NEW ENGLAND LAW REVIEW [Vol. 43:377

the offense or attempted offense. 49 It must be noted that, while this

8. Plastic Explosives Convention

9. Tokyo Convention and Nuclear Materials Convention

49. See id.

2009] FRAGMENTED CRIMINALIZATION 391

measures as may be necessary to establish its jurisdiction as the State of

B. A Critique of the Commentary Concerning these Conventions

1. Some Conventions Require Criminalization

56. Id. art. 3.

392 NEW ENGLAND LAW REVIEW [Vol. 43:377

prevent language. 63 The Tokyo Convention and the Nuclear Materials

2. Virtually None of the Operative Paragraphs Mention

63. See supra Part I.A.8.

2009] FRAGMENTED CRIMINALIZATION 393

communitys effort to skirt the issue entirely. Moreover, both the

3. The Conventions Clearly Define the Covered Activities

72. See supra text accompanying notes 41-51.

394 NEW ENGLAND LAW REVIEW [Vol. 43:377

belief of one commentator, the domestic-law definition of terrorism is

4. The Conventions Direct States to Deal with Acts

1. Status of the Operative Phrase Calls upon States

2009] FRAGMENTED CRIMINALIZATION 395

contains such an italicized participle as well.

396 NEW ENGLAND LAW REVIEW [Vol. 43:377

report that implementation to the Security Council in a year. 90 In the end,