VISITING EXPERTS’ PAPERS
THE ROLE OF THE UNITED NATIONS AND UNITED NATIONS OFFICE ON DRUGSAND CRIME IN THE FACILITATION, ACCESSION AND IMPLEMENTATION
OF THE 13 UNIVERSAL LEGAL INSTRUMENTS AGAINST TERRORISM
Jean-Paul Laborde*

I. GLOBAL THREAT
On 10 March 2005, at the International Summit on Democracy, Terrorism and Security, that wasorganized in the memory of the tragic events of 3/11 (as the terrorist attack that happened on 11 March 2004
is often referred to) in Madrid, UN Secretary-General Mr. Annan highlighted once again that… terrorism is a threat to all states and to all peoples, which can strike anytime, anywhere.
It is a direct attack on the core values the United Nations stands for: the rule of law; theprotection of civilians; mutual respect between people of different faiths and cultures; andpeaceful resolution of conflict… the United Nations must be at the forefront in fighting
against it, and first of all in proclaiming, loud and clear, that terrorism can never be acceptedor justified, in any cause whatsoever.1
And indeed, recent developments clearly show that terrorism has become indiscriminate2 and global innature. Therefore, it is natural that, as the only truly global organization with the goals and means ofpreserving peace and security, the UN is expected to be at the forefront of the global action against
terrorism. However, due to the sensitive nature of the phenomenon under scrutiny, many countries havetaken steps to fight terrorism either through regional forums, bilateral arrangements and/or through theirnational agencies. Despite these options, it has to be highlighted again and again that as the only globalorganization, UN has a unique comparative advantage - its multilateral tools that are crucial andindispensable to fight terrorism. It cannot be overstated that a global threat requires a global response. And
indeed as it will seen later on, the UN has several important functions that it is fit to do better than anyone
else.

Table 1: Role of the UN in the Fight against Terrorism:••••

Establishing a universal legal framework against terrorism (international conventions and protocols,
General assembly and Security Council resolutions including those adopted under Chapter VII);
Reinforcing international co-operation in criminal matters against terrorism (universal legal
instruments at work);
Fostering international co-ordination against terrorism (Counter Terrorism Committee, AlQaida/Taliban Committee, 1540 Committee, 6th Committee of GA);
Strengthening the capacity of Member States to comply with their international obligations(Terrorism Prevention Branch of the United Nations Office on Drugs and Crime and several otherUN agencies).

* Chief, Terrorism Prevention Branch, UNODC, Vienna International Centre, Vienna, Austria.
1 Kofi Annan. Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security.
Accessible at: http://english.safe-democracy.org/keynotes/a-global-strategy-for-fighting-terrorism.html.
2 If before terrorists targeted heads of States and governments and other VIPs, nowadays, ordinary civilians are targeted to
produce an atmosphere of fear and panic among the population. If before members of a terrorist group usually came from one
country, today a national of one country can recruit members of his terrorist organization in another, train them in a third,
receive funds from a fourth, carry out an attack in a fifth and seek safe haven in a sixth.

3

RESOURCE MATERIAL SERIES No.71

II. THE UNITED NATIONS OFFICE ON DRUGS AND CRIME AND ITSTERRORISM PREVENTION BRANCH
A. The Branch
The United Nations Office on Drugs and Crime, a specialized office that belongs to the Secretariat of theUN, is stationed in Vienna and carries out the work of the Secretariat on drugs, crime and terrorism. The
General Assembly as well as Economic and Social Council (ECOSOC) and its Commissions on Narcotic
Drugs (CND) and on Crime Prevention and Criminal Justice (CCPCJ) provide the relevant mandate to theoffice in the respective fields. The draft resolutions of the Crime Commission are either adopted by thecommission (rarely) or brought to the ECOSOC, which adopts them or approves those resolutions for
adoption by the General Assembly. In recent years, in addition to its two original areas of work – drugs andcrime, the UNODC has developed a third pillar of its work - delivering legislative technical assistance on
counter-terrorism. It is done through its Terrorism Prevention Branch of the Division for Treaty Affairs(TPB).
The TPB also became an important executing partner for the UN Security Council Counter-Terrorism
Committee (CTC) to implement a criminal justice response to international terrorism. More in particular, it
focuses on the promotion of the ratification and implementation of the thirteen Conventions and Protocols
against terrorism, which were adopted by the international community between 1963 and 2005. 3 The
technical assistance programme, which functions on a request only principle, covers basically the following
tasks:

Table 2: Main Activities of the Terrorism Prevention Branch of UNODC
•
•
•
•
•
•
•

Promote the ratification and implementation of anti-terrorist conventions and protocols
Explain requirements and benefits of these international instruments
Analyze national legislation related to countering terrorism, advise on what is needed to implement
conventions and protocols
Provide sample laws from other countries or model laws
Assist in legislative drafting of anti-terrorist legislation when national resources or experience islimitedTrain criminal justice and law enforcement officials in the implementation of new laws andinternational criminal justice cooperation, including extradition and mutual legal assistance
Organize national and (sub-) regional workshops, usually in cooperation with a requesting
government or other international and regional organizations

Source: UN Office on Drugs and Crime. Terrorism Prevention Branch. Delivering Counter-Terrorism Assistance.
Vienna, TPB, April 2005, p.3.

The strengthening of the international legal regime against international terrorism is the main objectiveof TPB. It is done so through the conventions and protocols in order for States which are parties to these
legal instruments to possess common definitions of certain terrorist offences and so they can exercise
jurisdiction over the offences so defined. By creating extraterritorial jurisdiction (especially in the case of
aircraft and ships) and by being obliged to either bring the terrorists to trial at home or extradite them to arequesting other State, a legal regime is created which leaves no sanctuary to terrorists once all States havebecome parties to all of these treaties – provided they have the capacity to monitor the whereabouts andmovements of suspected terrorists. We are still some distance from having a seamless international regime,
despite a notable increase in ratifications of the instruments in recent years4 (Table 3):

3 See its website: www.unodc.org/terrorism.html – For more information on the thirteen conventions, see:www.un.org/Depts/dhl/resources/terrorism/index.html.
4 The thirteenth instrument, International Convention for the Suppression of Acts of Nuclear Terrorism, was opened forsignatures at the UN World Summit on 14 September 2005 in New York. So far, there are only two ratifications.

4132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Table 3: Number of Member States, which are Parties to the Twelve Universal Anti-Terrorism
Conventions and Protocols.
Mid-2000

June 2006

1. Tokyo Convention (1963)

169

182

2. Hague Convention (1970)

171

182

3. Montreal Convention (1971)

174

185

4. Int. Protected Persons Convention (1973)

102

162

5. Hostage Convention (1979)

89

153

6. Nuclear Material Convention (1979)

64

117

6a. Amendment to the Nuclear Material Convention (1980)—

3

7. Airports Protocol (1988)

99

158

8. Maritime Navigation Convention (1988)

39

135

8a. Protocol to the Maritime Nuclear Material Convention (2005)

n/a0

9. Fixed Platform Protocol (1988)

35

124

9a. Protocol to the Fixed Platform Protocol (2005)

n/a

0

10. Plastic Explosives Convention (1991)

56

125

11. Terrorist Bombing Convention (1997)

8

146

12. Terrorist Financing Convention (1999)

0153

13. Nuclear Terrorism Convention (2005)

n/a2

Source: Data from UN Office of Legal Affairs; updates by Terrorism Prevention Branch (20/05/2005).

Once all States are parties, the challenge is full implementation, followed by flawless international judicial
cooperation.

B. The Mandate
In the context of the UN’s efforts to prevent and combat terrorism, since 2002 the United Nations Officeon Drugs and Crime (UNODC) has set up an expanded programme of work on technical assistance tocounter terrorism that is based on mandates approved by the UN Commission on Crime Prevention andCriminal Justice and adopted by the General Assembly.
This mandate, carried out by TPB focuses on the provision of assistance to countries, upon request, for
ratifying and implementing the universal legal instruments against terrorism. Since 2002, the General
Assembly, the Economic and Social Council and the Commission on Crime Prevention and Criminal Justice
have reiterated the mandates of TPB. For example, upon the recommendation of the Commission on Crime
Prevention and Criminal Justice and the Economic and Social Council, the General Assembly, in December
2004, adopted resolution 59/153, entitled “Strengthening international cooperation and technical assistancein promoting the implementation of the universal conventions and protocols related to terrorism within theframework of the activities of the United Nations Office on Drugs and Crime”. In that resolution, theAssembly requested the TPB “to intensify its efforts to provide technical assistance in preventing andcombating terrorism, including training judicial and prosecutorial personnel, where appropriate, in theproper implementation of the universal anti-terrorism instruments”.
Particular characteristics of the UNODC are its experience in promoting and facilitating international
cooperation in criminal matters, especially extradition and mutual legal assistance; its operational capacities
and field presence; its programmatic synergy of efforts for dealing with drug control, transnational organizedcrime, money-laundering and corruption.
The Eleventh Congress on Crime Prevention and Criminal Justice, held in Bangkok from 18 to 25 April
2005, further acknowledged the importance of the technical assistance to the UN Member States and in its

5

RESOURCE MATERIAL SERIES No.71

outcome document “Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal
Justice” commonly known as the Bangkok Declaration.

Table 4: Extract from the Bangkok Declaration:
We call upon States that have not yet done so to become parties to and implement the universal
instruments against terrorism. In order to enhance the capacity of States to become parties to andimplement those instruments and to comply with the relevant Security Council resolutions against
terrorism, we express our support for the continuing efforts of the United Nations Office on Drugs andCrime, within its mandate and in coordination with the Counter-Terrorism Committee and the CounterTerrorism Executive Directorate of the Security Council, to assist States in their efforts to ratify andimplement those instruments, through the provision of technical assistance upon request. This might
include assistance to criminal justice systems to facilitate the effective implementation of those
instruments.
The latest mandate TPB got from the GA 6th Committee in January 2006 when the Committee, in its
resolution A/RES/60/43, requested the TPB/UNODC “to continue its efforts to enhance, through its
mandate, the capabilities of the United Nations in the prevention of terrorism, and recognizes, in the context
of Security Council resolution 1372(2001), its role in assisting States in becoming parties to andimplementing the relevant international conventions and protocols relating to terrorism, including theInternational Convention on Suppressing of Acts of Nuclear Terrorism, and in strengthening international
cooperation in criminal matters related to terrorism, including through national capacity building”.

C. Cooperation with other UN Bodies
The technical assistance activities of the Terrorism Prevention Branch are undertaken in full compliancewith the decisions and policy guidance of the Security Council’s Counter-Terrorism Committee and in close
coordination with the work of the Counter-Terrorism Committee Executive Directorate (CTED). There is
full complementarity between the normative, policy and monitoring functions of the CTC/CTED and thetechnical assistance provision/delivery functions of UNODC. In its communications with those countries
requiring assistance for reviewing anti-terrorism legislation, CTC makes specific reference to thespecialized assistance available from UNODC, which delivers legislative and advisory services, drawing on
its specialized substantive expertise.
The Branch also works in close coordination with the United Nations Office of Legal Affairs (OLA), theDepartment for Political Affairs and the Office of the United Nations High Commissioner for Human Rights(OHCHR) in order to insure compliance with the relevant parts of their work.

D. Strategy
The objective of the technical assistance activities of the Terrorism Prevention Branch is to strengthen
the legal regime against terrorism. It means providing legal advice to countries on becoming parties to theuniversal legal instruments against terrorism, by assisting countries incorporate these provisions into theirnational penal codes, by providing training to criminal justice officials on the new laws and by assisting
countries in strengthening national institutions dealing with terrorism. When requested, assistance is also
given for preparing the country reports to the Security Council’s Counter Terrorism Committee.
E. Legal Advisory Services to Countries on Becoming Parties to the UN Conventions and Protocols
In order to perform its task of encouraging the adoption and implementation of the universal agreements,
the Terrorism Prevention Branch has to support the countries to continue their efforts to assume theseinternational obligations.
It is therefore the responsibility of the TPB to indicate to the Member States the added value of theuniversal conventions and protocols; and the arguments are the following:
the conventions establish a definition of a particular type of terrorist activity and require that theStates Parties criminalize that conduct according to the definition agreed upon in the convention or
protocol-6

they contribute to establish widespread legal recognition of the defined terrorist offences. This isessential to fulfill the requirement of dual criminality, which is a basic principle of international

132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

cooperation and may be jeopardized if a legal system defines an offence in a way that is notpunishable in other countries.
-

There are other aspects of international cooperation in criminal matters related to terrorism inparticular for the investigative and prosecution phase that depend upon the existence of applicableagreements. Many countries cannot use compulsory process, such as a search warrant or an order tosecure bank records, to assist a foreign police or prosecutorial office except pursuant to legal
authority based on applicable bilateral, multi-lateral or universal agreement. Consequently, it is clearthat international cooperation in criminal matters, particularly extradition, mutual legal assistanceand law enforcement cooperation, is a prerequisite for countering terrorism effectively.

Another facet of the added value of the universal conventions and protocols is the obligation to establish
jurisdiction to sue a suspected offender and to refer the offender for prosecution if he or she is found in theState and extradition is refused under the provisions of an applicable convention. This dominant principle,
known juridically as aut dederre aut judicare , was embodied in all of the criminal conventions andsubsequently made mandatory by Security Council Resolution 1373 which force countries to bring to justice
the penetrator of the terrorist acts, so that there will be no place where an accused terrorist is safe fromextradition or prosecution.
By doing so, the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime is able tofulfill its advocacy role for promoting the universal conventions and protocols against terrorism.
Harmonization of national laws is easiest when laws refer to new crimes for which only a few nations
already have national laws. Money-laundering, for instance, was not, until quite recently, a crime in many
jurisdictions. A country is usually not willing to extradite a person – especially when he or she is a citizen –to another country if the offence for which that person is sought is only a crime in the requesting country
and not at home. Dual criminality in the existence of laws against an offence in both requesting and hosting
country of a criminal is necessary to make extradition possible.
Criminalizing certain harmful acts in all jurisdictions is therefore important if one wants to create aseamless international legal regime against harmful activity such as the financing of terrorism. However,when crimes are planned in one country but executed in another, the planning and preparation for a crimemust also be subject to common international standards. The latest terrorist conventions on bombing andthe suppression of the financing of terrorism also criminalize, next to planning and preparation, participation
in a criminal association that has as its goal the preparation and execution of such acts. Also included is theknowing of financial support for the commission of terrorist acts. The newer conventions also extend thejurisdiction beyond the territory where the offence occurs, taking the nationality of the perpetrator or thevictims into account in the decision to prosecute someone accused of terrorist acts.5 The goal behind these
13 universal legal instruments against terrorism is simple and I mentioned it before but it is worth reiterating it: to create an overarching international legal regime in which there are “no safe havens forterrorists”.

F. Providing Legal Advice to Countries on Incorporating the Conventions and Protocols in their Legal
SystemThe task does not end with the ratification of the conventions and protocols. An important part of thework of the UNODC/TPB is to assist countries in incorporating their dispositions into their own legal
system. To do this, the Terrorism Prevention Branch analyzes national legislation related to counterterrorism and examines the periodic reports of the countries to the Counter Terrorism Committee of the
Security Council. It informs the relevant agencies of any discrepancies between their existing statutory
scheme or proposed legislation and the requirements of the relevant conventions, protocols and Security
Council resolutions, as well as identifies legislative needs together with relevant national authorities.
The creation of an offence of terrorist financing can be used as an example of the approach followed by
the UNODC/TPB when providing advice on the implementation of the universal conventions and protocols.

5 Idem, p. 6.

7

RESOURCE MATERIAL SERIES No.71

The most common difficulty with respect to establishing a crime of financing of terrorism results from abelief that the general offence of participation in a crime can be used to punish terrorist financing without
the need to create a separate offence or to amend those definitions in the general part of the code. Veryoften, countries say that they do not need a new or amended law to cover the financing of terrorism because
they will simply punish it as a form of participation in the resulting terrorist bombing, murder or otherviolent offence or attempt, as supplemented by their anti-money laundering laws.
However, while administrative anti-money laundering structures and methods can contribute as useful
information for the fight against terrorism, the financing of terrorism will almost never constitute an offence
under a money laundering law which was not drafted or amended to specifically address the provision orcollection of funds for the purposes of terrorism. Obviously, money-laundering statutes almost always
require proof that the funds laundered are the proceeds of crime. Funds for terrorist financing may derivefrom ordinary crime, such as fraud offences, but more commonly they come from legitimate sources.
Another element to point out is that criminalizing the financing of terrorism only as a form ofparticipation in the principal offences requires that the main offence be completed or attempted. Such alimited definition does not satisfy the Financing Convention, and does not enable the preventive strategy ofinvestigating, prosecuting and punishing terrorist preparations before actual violence occurs.

G. Field Presence
Special efforts have been made to achieve increased field level presence and input, through assigning
regional and sub-regional experts. This has already been done for North Africa and the Middle East, Southand Central America, the Commonwealth of Independent States (CIS), Central Asia, South-East Asia and thePacific. These experts provide specialized national and sub-regional input and perspectives and facilitate
effective follow-up to the activities of the Branch. An important parallel objective of this initiative is to buildup sub-regional expertise on counter-terrorism issues. This field presence is necessary to insure proper
practical expertise and experience as well as relevant follow-up to the advisory services provided.
H. Operational Partnerships
Efforts have also been made to maximize impact through operational partnerships and complementarityof efforts. In this regard, technical assistance activities are undertaken in close partnership and cooperation
with numerous international, regional and sub-regional organizations. These include, but are not limited to,
the United Nations High Commissioner for Refugees (UNHCR), Organization of American States (OAS), theOrganization for Security and Cooperation in Europe (OSCE), the Commonwealth Secretariat, theInternational Monetary Fund, the African Union (AU), the International Organization of la Francophone, theNorth Atlantic Treaty Organization (NATO), the Economic Community of West African States (ECOWAS),
the Economic Community of Central African States (ECCAS), the League of Arab States, Interpol, theInternational Civil Aviation Organization (ICAO), the Counter-Terrorism Working Group of the European
Union (COTER), the Financial Action Task Force (FATF) and the Counter Terrorism Action Group (CTAG)of the G-8.
I. The Global Project on “Strengthening the Legal Regime against Terrorism”
In order to realize the activities, a global project on “Strengthening the Legal Regime against Terrorism”
provides the overall framework for delivering technical assistance to countries. It functions as an on-going‘rolling’ project, with global, sub-regional and national components and activities. It is regularly revised andup-dated, to determine continued relevance of all elements, discontinue those components which are nolonger essential and to integrate new initiatives in response to new requirements.
Through the project, assistance was provided to 112 countries between October 2002 and March 2005.
Of those 112 countries, more than 60 received direct assistance and the others received indirect assistancethrough sub-regional and regional activities. Over 600 national officials have been trained on the ratificationand implementation requirements. They were familiarized with the provisions of the 12 universal legal
instruments against terrorism and the requirements of Security Council resolution 1373 (2001).
During the period October 2002 to December 2004 the Branch achieved a project implementation rate ofclose to 100 per cent in relation to funds made available, thus meeting the Branch’s goal of utilization of8132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

provided funds within a period of 12 months. 6 This was accomplished through advance planning andinitiation of project activities in anticipation of receipt of pledged voluntary contributions.
The scope of assistance provided through this project has been broadening, in terms of its geographicalreach, the numbers of countries receiving assistance, and the substantive content of the assistance provided.
In the future, increased attention will be given to implementation assistance, as more countries ratify theuniversal instruments.

J. Perspectives
As the universal legal instruments against terrorism will be achieving a universal level of ratification,
new project activities will be given priority:• Legislative drafting assistance to incorporate universal provisions into national legislation• Strengthening institutional judicial structures necessary for anti-terrorism cooperation• Providing on-line technical assistance on extradition and mutual legal assistance requests• Providing support for establishing international cooperation mechanisms through mentorship, bothto speed the process and achieve compliance with international standards• Training national criminal justice officials, on the basis of the universal legal instruments and inaccordance with criminal justice standards
Moreover, continued attention will be given to follow-up measures. The Branch will also undertake
evaluations and impact assessment of its technical assistance.
After this overview of the role of UNODC/TPB, we can now proceed to other UN bodies involved in thefight against terrorism.

6 The 2005 activities are currently under review and evaluation.

9