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Foreign Terrorist Fighters: Resolution

Tomorrow (21 December), the Security Council is set to adopt a resolution on foreign terrorist fighters (FTFs) and returnees. The draft resolution, drafted by the US, is a follow up to resolution 2178 on FTFs, adopted on 24 September 2014 in a summit meeting chaired by then-US President Barack Obama on this issue.

Resolution 2178, which was adopted unanimously at the meeting, included several innovations to the Council’s counter-terrorism framework. It introduced a definition of foreign terrorist fighters as individuals who travel or attempt to travel to a state other than their states of residence or nationality “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”. The resolution also introduced an international obligation requiring member states to establish criminal offenses so that would-be terrorist fighters could be prosecuted for their intention to travel in order to participate in terrorist acts. This obligation requires member states that have “credible information that provides reasonable grounds to believe” that certain individuals might become foreign terrorist fighters to prevent their entry or transit through their territories.

Since then, Council members have come to recognise that the crux of the threat from FTFs has changed. There has been a decrease in the overall number of foreign terrorist fighters travelling to Iraq and Syria, and the financial situation of the Islamic State in Iraq and the Levant (ISIL) (Da’esh) is deteriorating. However, the threat from ISIL continues to evolve. ISIL is still capable of sending funds outside the conflict zone to its supporters and motivating and enabling attacks around the world. Furthermore, FTFs are now returning to their home countries or other countries, presenting a new set of challenges for states. Against this background, the US, with the support of other Council members, circulated a draft resolution early last week focused on the return of FTFs after travelling to conflict zones to participate in terrorist activities.

The draft resolution, which was originally planned for circulation and adoption in November, acknowledges that returning and relocating foreign terrorist fighters have attempted, organised, planned, or participated in attacks in their countries of origin or nationality, or third countries, including against public spaces and civilian targets, and that (ISIL) (Da’esh), in particular, has called on its supporters and affiliates to carry out attacks wherever they are located. It calls on states to develop and implement risk assessment tools to identify individuals who demonstrate signs of radicalisation and to develop intervention programs before such individuals commit acts of terrorism. At the request of Sweden, language was added that such programs include a gender perspective, and that risk assessments and intervention programmes are conducted in compliance with applicable law and without resorting to profiling based on any discriminatory grounds prohibited by international law. References to adherence to international law, including human rights law, were inserted in several places in the draft text at the request of France, Italy and Sweden.

The draft text had originally urged states “to develop and implement guidelines regarding the timely notification upon receipt, travel, or deportation of captured or detained individuals whom they have reasonable grounds to believe are terrorists, including suspected foreign terrorist fighters” and to cooperate on this issue. However, Egypt wanted the language to be more obligatory. As a compromise, the text calls upon states to notify others rather than develop guidelines to that effect.

Differences arose during negotiations on the proper treatment of FTFs and their family members travelling with them. Several states, mainly the Western ones, took the view that states need to distinguish between FTFs and their families in their screening process, rather than automatically assume they are complicit. Furthermore, they wanted the resolution to call on states to develop comprehensive prosecution, rehabilitation and reintegration strategies to determine the most appropriate solution for FTFs, as well as their families, including incarceration and other solutions. However, Russia took the view that FTFs should be held criminally liable, and family members travelling with FTFs are complicit and should necessarily be held accountable. At its insistence, the language referring to both “custodial and non-custodial” solutions was stricken, and the draft text remains silent on the issue.

Moreover, the final draft text no longer requests states to distinguish between FTFs and their families, but rather “to assess and investigate suspected individuals whom they have reasonable grounds to believe are terrorists, including suspected foreign terrorist fighters and their accompanying family members, including spouses and children”. In addition, the reference to rehabilitation and reintegration strategies mentioned above now includes an emphasis that states are obliged, in accordance with resolution 1373, to ensure that any person who participates in terrorist acts or in supporting terrorist acts is brought to justice.

A major issue of controversy was around the US proposal that member states shall ensure that their domestic laws and regulations establish serious criminal offenses for their nationals who knowingly provide support to individuals or entities listed by the 1267/1989/2253 ISIL (Da’esh) & Al-Qaida Sanctions Committee. Several states were adamant that criminalising any act of support, including that which is not necessarily related to terrorist activities, goes beyond the scope of resolution 2178. Furthermore, they argued that this goes against basic principles of criminal law and that such a serious obligation on states imposed by the Council merits a fuller discussion. The final draft text recalls that states are obliged to ensure that their domestic laws and regulations establish serious criminal offenses sufficient to prosecute and penalise the activities described in paragraph 6 of resolution 2178 in a manner duly reflecting the seriousness of the offense. (Paragraph 6 of resolution 2178 speaks of support to terrorist acts but not listed persons per se).

Another matter of contention was on the issue of technical assistance between states for developing biometric data, including fingerprints, photographs, facial recognition, and other relevant identifying biometric data. Egypt, with the support of other Council members, wanted the resolution to include an obligation to deliver such assistance to states that require it to meet their obligations under the resolution. However, other states refused to include such strong language. The final draft uses a weaker formulation, calling upon states and international organisations to provide technical assistance, resources, and capacity-building to other states in order to implement such systems and encourages states to share this data responsibly among relevant states. In addition, according to the final draft, the Counter-Terrorism Executive Directorate assisting the Counter-Terrorism Committee is to take these capacity gaps into account when assessing states’ implementation of Council resolutions.

Russia advocated limiting references to the Secretary-General’s Plan of Action to Prevent Violent Extremism. Russia has expressed negative views about this plan, asserting that it infringes on state sovereignty and that it is not objective in identifying the root causes of extremism, for example, by asserting that authoritarian regimes are a root cause of violent extremism. Russia was amenable, however, to references to “conditions conducive to the spread of terrorism”, language that was incorporated in the final text.