Professor Andrew Byrnes, Faculty of Law, University of New South Wales

Reform of the United Nations and human rights*

Paper delivered at the Castan Centre 'Human Rights 2005: Year in Review' conference on 2 December 2005


When I agreed in the middle of 2005 to speak about United Nations reform and human rights, I was somewhat sceptical that there would be much to talk about by the end of 2005. The Secretary-General, Kofi Annan, had released his report In larger freedom in May 2005,(i) building on earlier proposals for reform.(ii) The Secretary-General proposed some ambitious reforms not only for the UN itself but also for the way in which the international community conducted itself. It was not at all clear that bold proposals such as those to reform the Security Council would prosper or simply disappear in the maelstrom of great power politics, while other broad-ranging proposals might simply disappear in a fug of diplomatic rhetoric and the empty endorsement of platitudes of the type so often seen at world summits. This may have been an excessively cynical attitude – though the fate of the Security Council proposals went pretty much true to form.

Yet the World Summit process has produced some significant developments which involve structural changes at the UN, shifts in emphasis in its approach to human rights and human security issues, and possibilities for improvements in the way the UN advances the implementation of human rights. I will touch on four of these, though I make no pretense of attempting to deal with the wide range of human rights issues that came up during the discussions about UN reform and which were dealt with at the World Summit in September 2005.(iii)

The human rights-related aspects of the reform process I wish to address are the following

1. Doctrinal: the development and endorsement of the concept of the responsibility to protect

2. Institutional: the replacement of the Commission on Human Rights by a new Human Rights Council

3. Programmatic: the Plan of Action of the UN High Commissioner for Human Rights

4. Absence: terrorism – the failure to agree on a definition of terrorism.


The provenance of the concept of the responsibility to protect within international law is well-known.(iv) While the doctrine has its antecedents in the long-running debate over the lawfulness of humanitarian intervention in international law, the concept of the responsibility to protect was an effort to move beyond the limits of that debate and to reshape the issues from a different perspective. It was largely a response to the failures of the 1990s, in particular the unwillingness or the inability of the United Nations and the international community to respond to the genocide in Rwanda until it was too late, and the concerns about the legality and the legitimacy of the NATO intervention in Kosovo in 1999 (where there was substantial agreement that to intervene was moral and appropriate, but arguably not lawful). Many felt that the international community had to formulate an approach which not only recognized the sovereignty of member States but which also articulated the circumstances in which it would be legally and politically acceptable to intervene in the affairs of a State in order to protect the its population from gross violations of human rights which that State was either itself perpetrating or unable to prevent from occurring.

The debate was advanced by the work of the International Commission on Intervention and State Sovereignty (ICISS), a body established and financed by the Canadian government and the John D and Catherine T MacArthur Foundation and consisting of leading individuals with considerable international political experience (including former Australian Foreign Minister, Gareth Evans). In its 2001 report, The Responsibility to Protect,(v) the ICISS sought to shift the conceptual framework of discussions about when the international community might intervene to protect citizens of a country from gross violations of human rights. In particular, rather than examining the legitimacy and scope of a right to humanitarian intervention, the report focused on State sovereignty as involving not just the rights of the State against external intervention but also as including the responsibility of the State for its citizens. A primary responsibility of the State was to ensure that its own citizens were safe from serious human rights violations; if the State was not able or was unwilling to carry out this responsibility, then the international community had a secondary responsibility to protect the population. (vi)

The shift from a focus on the right of States to intervene to the rights and needs of the people whose rights were being protected was a significant change in perspective.

The ICISS also put the question of intervention in a broader perspective, recognizing that a focus only on intervention neglects important dimensions of preventing and dealing with situations involving gross violations of human rights. It saw the responsibility to protect as encompassing three specific elements:(vii)

* "The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.

* The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.

* The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert."

While the ICISS considered that the responsibility to prevent was the most important dimension of the responsibility to protect, it also addressed in some detail of the permissibility of military intervention for humanitarian purposes.(viii) It stated that this should be "an exceptional and extraordinary measure" which was only acceptable if "there was serious and irreparable harm to human beings" occurring or imminent and involving large-scale loss of life or large scale ethnic cleansing. Its analysis of what would make intervention legitimate in these circumstances reads as a more variant of just war theory. The ICCISS set out the following principles that should guide a consideration whether a military intervention would be justified:(ix)

"A. Right intention: The primary purpose of the intervention, whatever other motives intervening states may have, must be to halt or avert human suffering. Right intention is better assured with multilateral operations, clearly supported by regional opinion and the victims concerned.

B. Last resort: Military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for believing lesser measures would not have succeeded.

C. Proportional means: The scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective.

D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the suffering which has justified the intervention, with the consequences of action not likely to be worse than the consequences of inaction."

The ICISS also considered that an intervention had to be authorised by the "right authority", which it considered to be the Security Council under the Charter.(x)

Although the earlier reception of the concept of the responsibility to protect was somewhat muted – given the occurrence of the September 11 attacks – it subsequently began to attract significant interest and support, spurred in part by the emergence of the humanitarian crisis in Darfur in early 2003.(xi) The concept was endorsed by the Secretary-General’s High-level Panel on Threats, Challenges and Change in its 2004 report,(xii) as part of a broader strategy to address human security issues. The Secretary-General himself supported the proposal in his March 2005 proposals for reform of the United Nations and development of the international system,(xiii) which was put before the World Summit in September 2005.(xiv)

The Outcome document did contain a reference to the responsibility to protect and endorsed it in broad terms, something which has been rightly seen as a positive result of the summit. The Summit stated:(xv)

"Responsibility to protect

113. We agree that the responsibility to protect civilian populations lies first and foremost with each individual State and we accept that responsibility and agree to act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility. The international community, through the United Nations, also has the responsibility to use diplomatic, humanitarian and other peaceful means, including under Chapters VI and VIII of the Charter to help protect civilian populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we recognize our shared responsibility to take collective action, through the Security Council and, as appropriate, in cooperation with relevant regional arrangements, under Chapter VII of the Charter, should peaceful means proved insufficient and national authorities be unwilling or unable to protect their populations. We stress the need to continue consideration of the concept of the responsibility to protect within the sixtieth session of the General Assembly."

Nevertheless, as Pace and Deller point out,(xvi) the Outcome document does not go as far as the Secretary-General and the High-level Panel had proposed. They note that it does note refer to the responsibility to protect as an "emerging norm" nor does it affirm that States have a responsibility to use Chapter VII of the Charter to respond to situations of gross violation of rights. Even so, they conclude that "the language is sufficiently strong to be considered an endorsement of a new set of principles on national an international responsibility . . . and provides a vital new tool to hold governments and the international community accountable when they are manifestly failing to respond to grave threats to humanity."(xvii) There is no doubt that the endorsement of the concept is a significant advance. Whether it will mean that government act when there is a pressing need to do so, or refrain from action on humanitarian grounds when the criteria are not satisfied, remains to be seen,


In his report In larger freedom the Secretary-General proposed the establishment of two new bodies to address deficiencies in the existing bodies of the UN.(xviii) The first of these was a Peacebuilding Commission, intended to address what the Secretary-General described as "a gaping hole in the United Nations institutional machinery", namely the absence of a body to assist States "with the transition from war to lasting peace."(xix) The second was a Human Rights Council, intended to replace the existing Commission on Human Rights. In larger freedom sketched only the broad outlines of these proposed bodies, with further details provided in additional papers presented by the Secretary-General.(xx) The World Summit approved the establishment of each of these bodies, though the details were not addressed in the Outcome document and remained to be settled in subsequent negotiations. The Peacebuilding Commission was established by General Assembly resolution 60/90 of 30 December 2005,(xxi) the Human Rights Council some months later by General Assembly resolution 60/251 of 15 March 2006.(xxii) The Human Rights Council was scheduled to hold its first session in June 2006.

The Secretary-General’s proposal to establish a Human Rights Council was intended to elevate the status of human rights work in the UN by replacing a functional commission of the Economic and Social Council with a body which would be either a principal organ of the United Nations or a subsidiary body of the General Assembly.(xxiii) At the same time, the establishment of a new body would provide the opportunity to rethink the criteria for membership and to design rules that would make it difficult for consistent human rights violators to win election to the Council but also to encourage those States which became members to set an example by subjecting their human rights record to scrutiny within the peer review procedure of the Council and demonstrating leadership through their own commitments and actions in the field.

The key elements of the Secretary-General’s proposal were:(xxiv)

* The Council should be either a principal organ of the Untied Nations or a subsidiary body of the General Assembly(xxv)

* Members of the Council would be elected by a two-thirds majority of the General Assembly (intended to make the members "more accountable and the body more representative") (xxvi)

* The Council would be a standing body able to meet regularly and at any time to deal with crises (as opposed to the once a year, six-week sessions of the Commission)(xxvii)

* The Council would also have a peer-review function, "whose main task would be to evaluate the fulfilment by all States of all their human rights obligations" under a procedure which would require all States to be reviewed on a periodic basis(xxviii)

* The Council should be able to "come together and take action when serious human right situations develop"(xxix)

* The Council should be preserved as a "forum for dialogue among Member States and involving civil society on human rights issues", in light of the fact that "the increasing prominence and activism of both national institutions and NGOs has elevated their involvement in the human rights debate to centre stage"(xxx)

* The Council should "play a pivotal role in overseeing and contributing to the interpretation and development of international human rights law", to accelerate the pace of certain standard-setting activities, to reinforce the work of the Human rights treaty bodies.(xxxi)

It had been the mantra of the push to abolish the Commission on Human Rights that it had become "discredited", due to the politicization of much of its work, the selectivity of its condemnations, and the fact that countries with established records of gross human rights violations were regularly elected as members of the Commission and indeed even assumed formal leadership roles on its Bureau. There is little doubt that many of these criticisms are well-founded, though it is not surprising that an intergovernmental body dealing with such sensitive subjects should act in a political and politicised way. Efforts to reform the less desirable aspects of these practices seemed to have run into the sand within the framework of the existing Commission.

On the other hand, it should not be forgotten that the Commission has made many positive contributions to the elaboration and implementation of human rights (something which tended to be ignored or downplayed in the contributions of many of those who were critical of the Commission and wanted to see it abolished and replaced, whether for noble or less laudable reasons).(xxxii) The elaboration of significant human rights instruments (from the International Bill of Rights to the new draft Convention on Disappearances) and the work of the Subcommission on the Promotion and Protection of Human Rights on specific themes are two examples. Of particular importance has been the extent to which civil society organizations have been able to play a role in the work of the Commission, informing it in its deliberations and using the opportunity it provided to try to hold governments accountable in public for their human rights record.

But one of the major contributions of the Commission has surely been the development of the thematic and country-specific mechanisms of the Commission, which by their use of independent experts have been able to highlight violations, assist (potential) victims in some cases, and develop understanding and thinking around a range of contemporary human rights issues. While the record of the various working groups, special rapporteurs and special representatives has not been uniform (and there have been problems of inadequate resources), the contributions made by many of them have been significant. One need only refer to the work of the Working Groups on Disappearances and Arbitrary Detention, the Special Rapporteurs on Torture, Summary, Arbitrary and Extrajudicial Executions, or on Violence against Women to see that the political independence and expertise generally seen in these mandate-holders has been a critical element of their positive contributions.

Anyone who has had any experience with United Nations and similar organisations is always cautious when there is talk of "reform" or "rationalization" of an institution in the interests of greater efficiency, the avoidance of politicisation, or non-selectivity, especially when these proposals are supported by States whose own records of human rights are poor and which devote much of their energy at the international level to limiting effective eternal scrutiny of their own or others’ records. Too often, reopening existing mandates and practices provides the occasion for cutting back on the opportunities for civil society participation and for holding governments to account through public scrutiny of their human rights records.

This was a concern about the move from the Commission on Human Rights to the Human Rights Council, in particular that the establishment of a new body would mean that a whole range of procedures established under the Commission – both the independent special procedures and the extensive formal rights of non-governmental organisations to take part in the work of the Commission -- would be up for grabs under the new Council, which would presumably operate pursuant to the Rules of the General Assembly (which do not provide such extensive opportunities for formal intervention by NGOs). A number of governments and non-governmental organizations saw it as critical to the new Council that the best of the Commission’s practices be preserved, including the special procedures and also the participation of civil society in the Council.

Amnesty International expressed the concerns shared by many others when it called for the following critical elements to be included in the arrangements for the new Council:(xxxiii)

"A Human Rights Council must preserve the following essential characteristics which have been crucial for the Commission’s achievements:

* power to effectively and publicly address serious human rights situations, maintaining the existing functions and responsibilities granted to the Commission under ECOSOC resolutions 1235 and 1503 (adapted as necessary to suit the needs of a Human Rights Council);

* the system of independent thematic and country specific human rights experts known as the ‘Special Procedures’, but with enhanced coherence and support;

* the consultative status of NGOs based on Article 71 of the UN Charter and current practices of active NGO engagement with the Commission."

At the World Summit the Member States of the UN approved the creation of the Human Rights Council in the following terms:(xxxiv)

"157. Pursuant to our commitment to further strengthen the United Nations human rights machinery, we resolve to create a Human Rights Council.

158. The Council will be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.

159. The Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote effective coordination and the mainstreaming of human rights within the United Nations system.

160. We request the President of the General Assembly to conduct open, transparent and inclusive negotiations, to be completed as soon as possible during the sixtieth session, with the aim of establishing the mandate, modalities, functions, size, composition, membership, working methods and procedures of the Council."

This resolution represented the start of a further period of sustained negotiations over the more detailed structure and mandate of the Council, which was concluded only in the middle of March 2006 when the General Assembly adopted Resolution 60/251 (although this no doubt represent the start of the next stage of the struggle to ensure that the Council is effective and that it takes over the best of the Commission, and also provides opportunity for civil society institutions to be extensively involved in its work).

The General Assembly resolution establishing the Human Rights Council sets out the goals and functions of the Council in the terms contained in the World Summit Outcome document and in the Secretary-General’s proposal (though not always following the detail of the latter). In particular, the resolution provides that:

* The Council will consist of 47 members, to be elected by a majority of the members of the General Assembly, with membership to be based on equitable geographical distribution, for three-year terms, with States not to be eligible for immediate re-election after two consecutive terms(xxxv)

* Member States, when electing members of the Council, "shall take into account the contribution of candidate as to the promotion and protection of human rights and their voluntary pledges and commitments made thereto"(xxxvi)

* The General Assembly may, by a two-thirds majority, suspend the membership of a member of the Council which "commits gross and systematic violations of human rights"(xxxvii)

* All members of the Council "shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic mechanism during their term of membership"(xxxviii)

The Council is to meet regularly throughout the year, for no fewer than three sessions (including a main session), and for a total of not less than ten weeks; it will also have the power to hold special sessions. The General Assembly also decided that the Council would apply the rules of procedure established for committees of the General Assembly until otherwise decided by the Assembly or the Council. However, it also decided that the participation of observers, States not members of the Council, specialised agencies, other intergovernmental organisations, national human rights institutions and non-governmental organisations should be based on the arrangements which had obtained before the Commission "while ensuring the most effective participation of these entities".(xxxix)

So far as the fate of the various special procedures of the Commission of Human Rights was concerned, the Council is to "assume, review and, where necessary, improve and rationalize all mandates, mechanism, functions and responsibilities of the Commission on Human Rights in order maintain a system of special procedures, expert advice and a complaint procedure", the review to be completed within a year of the Council’s first session.(xl) The Commission held its final session in March 2006 and referred all its reports to the Council,(xli) which was scheduled to take up these matters (among others) at its first session in June 2006.

It can be seen that the resolution establishing the Human Rights Council addresses many of the issues that were of concern to human rights advocates (though it still contains language that was frequently used by those who devoted considerable effort to limiting the effective substantive scrutiny of countries by the former Commission). In particular, the system of elections, the explicit statement of criteria for membership, and the obligation of members of the Council to observe the highest standards and to undergo periodic peer review may prevent the repetition of the situation with the Commission where leading violators of human rights were members of the Commission. The provision for the continuation of the role of the special procedures and the procedures and practice for NGO participation that were followed at the Commission are encouraging, though the former is subject to an overall review and the latter is conditioned on "ensuring the most effective contribution" of entities such as NGOs, so there is still a possibility for subversion by States wishing to limit the opportunities for transparency and independent scrutiny.

It also remains to be seen how States will respond to the membership criteria when they put themselves forward as candidates and cast their votes, as even these procedural efforts to achieve substantive conduct could be undermined if States are determined to do so. Indeed, it may be that agreement by regional groups to limit the number of candidates to the same number as or fewer than the number of seats available for that region is possible. IF that were so and States were declared elected unopposed,(xlii) this would subvert the need for general approval by majority vote in the General Assembly, something which was seen as an important aspect of human rights quality control of aspiring Council members. Much also depends on the nature of the peer review that is adopted and the extent to which positive role models can encourage other States to embrace the objectives of the Council – and obtaining a two-thirds vote of the General Assembly to suspend a State’s membership in the event of gross violations in that State is unlikely to be easy unless dealing with a pariah State with almost no regional support.

There are signs that an informal culture of positive conduct may be developing, at least in relation to some regions. In the lead-up to the first elections to the Council to be held in May 2006, a number of countries made public their voluntary pledges as foreseen in General Assembly resolution 60/251. However, in some regional groups a relatively small number of States have made pledges; and in some cases the pledges consist of broad assurances and an expression of willingness to undergo the peer review process yet to be established. For example, in the African group, of the 7 States which had announced their candidacies in writing for the 13 African seats by mid-April 2006, only two (Algeria and Kenya) had made pledges of any sort.(xliii) Algeria’s statement comprised bland general assurances of its commitment to human rights and its willingness to support the work of the Council (including subjecting itself to peer review); Kenya’s was a more detailed 4-page description of its commitment to human rights, steps taken at the national level, and its willingness to cooperate with UN institutions and to play a constructive role at the international level. The OHCHR has attempted to give substance to the vague language of the GA resolution and has issued suggestions of the types of specific information that States might include in their pledges.(xliv)

In addition, at least one country has indicated that it will itself attempt to avoid the political horsetrading that normally accompanies elections to many UN bodies (which means that a State’s decision to support a candidate is not necessarily related to the merits of the candidate) and that it would encourage others to do so. In a statement to the General Assembly on 15 March 2006, the Permanent Representative of Mexico to the United Nations, Mr Enrique Barruga Filloy, stated:(xlv)

"Mexico has decided to adopt a policy of not exchanging votes on candidatures to elect members of the Human Rights Council. The purpose of this measure is to make sure Mexico always grants its support to those candidates who, as set out in the resolution, have the most merits and demonstrate the highest level of commitment to the human rights cause. Furthermore, as part of this policy, Mexico will not disclose its voting intentions thus avoiding the influence of factors foreign to human rights agenda."

While Human Rights Watch has called on other States to adopt a similar approach and to cast their votes on the basis of the merits of a candidate rather than as part of a broader political deal,(xlvi) it seems unlikely that such an approach will be adopted by the majority of States.

Whatever lies ahead, the possibilities for shaping the Human Rights Council to be a more effective body than the Commission in its later years are certainly present. While the general assurances in the World Summit Outcome and the enabling resolution are encouraging, there is still a considerable deal of work and vigilance required if the Council is to achieve a significant part of its promise.


One of the important components of the UN’s reform agenda was the development of a Plan of Action by the Office of the High Commissioner for Human Rights under the current High Commissioner, Louise Arbour, who had taken up the office of High Commissioner in July 2004. The Secretary-General had requested the High Commissioner to prepare a plan for strengthening the work of the UN OHCHR in the responding to the human rights challenges that faced the international community.(xlvii)

In May 2005 the High Commissioner set out her plans for the review, reform and ramping-up of her Office’s role in a Plan of Action,(xlviii) and further developed some of those ideas in her report to the General Assembly later in the year.(xlix) The High Commissioner summarized the primary goals of the Plan of Action as the protection of human rights and the empowerment of rights holders:(l)

"The two goals of the Plan of Action – protection and empowerment – reflect a more holistic view of the activities of the human rights programme and a recognition that the protection of human rights and the empowerment of individual rights holders and duty bearers are decisive for bridging the gap between human rights rhetoric and reality. The strategies and activities aimed at strengthening protection may consist in capacity-building human rights education and promotion, or include fact-finding, monitoring, inquiries or advocacy, among others depending on the specificities of the situation. Human rights protection should thus be seen as immediate and short-term, as well as a long-term endeavour for the benefit of rights holders. This goes in tandem with the concept of empowerment, which will ensure that individual rights holders are placed in a position from which they can realize their rights or claim their implementation."

The Plan sets out objectives for action in five main areas: (a) a greater country engagement; (b) an enhanced leadership role for the High Commissioner; (c) closer partnerships with civil society and United Nations agencies; (d) greater synergy in the relationship between the OHCHR and the various UN human rights bodies; and (e) strengthened management within the office. The High Commissioner has also set as her goal a significant increase in funding for the Office, being initially successful at the World Summit in obtaining a doubling of regular budget resources over a five-year period (translating into 91 new posts in 2006/7).(li)

In approaching the work of the Office, the High Commissioner took as her starting-point that the success of the reform of the UN and the OHCHR should and would be measured against its impact on individuals and their actual enjoyment of human rights. In order to achieve this, the HC underlined the commitment of the UN and the OHCHR to assisting governments to carry out their obligations. The practical implications of this commitment might not excite all governments with human rights problems, since they include more country offices and greater country engagement, country assessments to determine areas of need, increased technical cooperation with governments, increased support for national human right institutions, and the involvement of UN country teams in following up treaty body and special rapporteur recommendations.(lii)

The High Commissioner and her Office look poised to enter a new stage of work in the implementation of human rights. After the interregnum that followed the tragic death of Sergio Vieira de Mello in Baghdad in 2003, Arbour has brought to the Office enormous energy and focus. Taking advantage of a politically propitious time, she has been successful in persuading governments to provide significant increases in the regular budget and also voluntary contributions, and has instituted an impressive management and planning process that seems directed to achieving results on the ground. The next few years will see how much of an impact the Office under Arbour can make.


The United Nations has continued to grapple with the problems posed by terrorism, both in terms of addressing its causes and consequences, and in endeavouring to work out how to support the struggle against terrorism without permitting or encouraging trampling on fundamental human rights. Within the framework of the preparations for the World Summit, the High-Level Panel had addressed the issue of terrorism in a broad-ranging way and advocated a comprehensive strategy in relation to terrorism.(liii) They argued that there was a need to attempt to address the causes and facilitators of terrorism, as well as ensuring that there was a strong legal and regulatory framework to prevent and punish the perpetrators of terrorist acts and those who supported them.(liv) The High-level Panel saw the lack of an agreed comprehensive definition of terrorism at the UN level as an impediment to the UN’s efforts:(lv)

"157. The United Nations ability to develop a comprehensive strategy has been constrained by the inability of Member States to agree on an anti -terrorism convention including a definition of terrorism. This prevents the United Nations from exerting its moral authority and from sending an unequivocal message that terrorism is never an acceptable tactic, even for the most defensible of causes.

159. …The norms governing the use of force by non -State actors have not kept pace with those pertaining to States. This is not so much a legal question as a political one. Legally, virtually all forms of terrorism are prohibited by one of 12 international counter-terrorism conventions, international customary law, the Geneva Conventions or the Rome Statutes. Legal scholars know this, but there is a clear difference between this scattered list of conventions and little –known provisions of other treaties and the compelling normative framework, understood by all, that should surround the question of terrorism. The United Nations must achieve the same degree of normative strength concerning non -State use of force as it has concerning State use of force. Lack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. Achieving a comprehensive convention on terrorism, including a clear definition, is a political imperative.

160. The search for an agreed definition usually stumbles on two issues. The first is the argument that any definition should include States’ use of armed forces against civilians. We believe that the legal and normative framework against State violations is far stronger than in the case of non-State actors and we do not find this objection to be compelling. The second objection is that peoples under foreign occupation have a right to resistance and a definition of terrorism should not override this right. The right to resistance is contested by some. But it is not the central point: the central point is that there is nothing in the fact of occupation that justifies the targeting and killing of civilians."

The High-Level Panel proposed the elements of a definition of terrorism for adoption at the UN level. In addition to references to acts referred to under the existing UN terrorism conventions, the Panel suggested the addition of a general description to cover other acts, in the following terms:(lvi)

"any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act".

In his report, the Secretary-General urged Member States to adopt the approach advocated by the High-Level Panel by adopting a comprehensive definition of terrorism:(lvii)

"I endorse fully the High-level Panel's call for a definition of terrorism, which would make it clear that, in addition to actions already proscribed by existing conventions, any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act. I believe this proposal has clear moral force, and I strongly urge world leaders to unite behind it and to conclude a comprehensive convention on terrorism before the end of the sixtieth session of the General Assembly."

However, the World Summit did not heed the Secretary-General’s plea. While the Outcome document contains a number of paragraphs on terrorism and the need to adopt a comprehensive strategy,(lviii) it makes no mention of the need to conclude the drafting of a comprehensive anti-terrorism convention, nor does it refer to the need for an agreed definition of terrorism, let alone endorse the one proposed by the High-Level Panel and the Secretary-General.(lix) Notwithstanding the absence of such a comprehensive definition –which some have argued is not critical to the core of international efforts to combat terrorism, though there may be grey areas(lx) – the World Summit endorsed the continuing work of the UN in the field of terrorism, in particular the work of the Security Council’s Counter-Terrorism Committee.

The work of the Committee given the task of drafting the comprehensive anti-terrorism convention(lxi) continues, and that body continues to struggle with the question of the applicability of the convention, in particular to situations of occupation.(lxii) However, it appears that agreement may have been achieved on a criminal law definition of terrorism,(lxiii) though the critical issues have been the exceptions rather than the core.

The work of the United Nations in relation to terrorism continues on a variety of fronts, as do its efforts to ensure that human rights and fundamental freedoms are observed in that fight. The resources devoted to the anti-terrorism efforts continue to be considerable, but the bodies tasked with ensuring that human rights are taken ito account have begun to have an impact as well.(lxiv)


* This is a revised and updated version of a presentation made at the December 2005 Year in Review conference, and incorporates developments on the topics covered up to early 2006. This paper draws in part on research undertaken as part of an ARC-funded Discovery Project (DP0451473), "Terrorism and the non-state actor: the role of law in the search for security".

i Kofi Annan, In larger freedom: Towards Development, Security and Human Rights for All (2005) [hereinafter In larger freedom], A/59/2005, available at

ii In particular those of the Secretary-General’s High-Level Panel in its report A more secure world: Our shared responsibility, Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change (2004) [hereinafter A more secure world], available at

iii The final outcome of the World Summit can be found in World Summit Outcome document, General Assembly resolution 60/1, adopted on 16 September 2005, A/60/1 [hereinafter Outcome document]

iv See generally Ramesh Thakur, "Intervention, sovereignty, and the responsibility to protect" in Ramesh Thakur, Andrew F Cooper and John English (eds), International Commissions and the Power of Ideas (United Nations University Press, 2005) 180; Jennifer Welsh, Carolin J Thielking, and S Neil MacFarlane, "The responsibility to protect: Assessing the report of the International Commission on State Sovereignty" in id at 198; and William R Pace and Nicole Deller, "Preventing Future Genocide: An International Responsibility to Protect", (2005) 36(4) World Order15.

v International Commission on State Sovereignty, The Responsibility to Protect: The Report of the International Commission on State Sovereignty (December 2001), available at [hereinafter Responsibility to Protect].

vi Responsibility to Protect, above note 5, at xi.

vii Ibid

viii Id at 29-37

ix Id at xi

x Ibid

xi See Pace and Deller, above note 4,at 21-22. For developments up to and after the World Summit, see the website of Responsibility to Protect – Engaging Civil Society,

xii A more secure world, above note 2, at paras 199-209.

xiii Pace and Deller note that there was one important difference in the Secretary-General’s presentation of the concept, namely that he removed it from the consideration of the issue of the use of force, something which they consider made it easier to gain government support for the concept: Pace and Deller, above note 4, at 25

xiv In larger freedom, above note 1, at para 135.

xv Outcome document, above note 3, at para 115.

xvi Pace and Deller, above note 4, at 27

xvii Id at 27-28

xviii In larger freedom above note 11, paras 114-199 (Peacebuilding Commission) and 181-183 (human Rights Council)

xix Peacebuilding Commission, Explanatory note by the Secretary-General, A/59/2005/Add. 2, para 2 (23 May 2005).

xx Human Rights Council, Explanatory note by the Secretary-General, A/59/2005/Add. 1 (23 May 2005); Peacebuilding Commission, Explanatory note by the Secretary-General, A/59/2005/Add. 2 (23 May 2005).

xxi See generally

xxii For developments since that time, see and

xxiii In all the reform discussions around the Commission and the Council, there has been no reference to the work of the Commission on the Status of Women, a functional commission of ECOSOC established at the same time as the Commission on Human Rights on an equal basis with it, which also deals with human rights issues.

xxiv This summary is based on the Secretary-General’s proposal in A/59/2005/Add 1 (2005)

xxv A/59/2005/Add 1, paras 3 and 14

xxvi Id at para 4. The Secretary-General left open the question of size, noting that the size of the Commission of Human Rights (53 members) was only one less than the number of members of ECOSOC who elected the Commission and that "a smaller membership on the Human Rights Council would allow more focused discussion and debate" Id at para 13.

xxvii Id at para 4

xxviii Id at para 6 (citing a speech of the Secretary-General to the Commission on Human Rights on 7 April 2005)

xxix Id at para 11

xxx Ibid

xxxi Ibid

xxxii For a review of the Commission which identifies both its positive contributions and its shortcomings, see Amnesty International, "Meeting the challenge: Transforming the Commission on Human Rights into a Human Rights Council", April 2005, AI Index: IOR 40/008/2005.

xxxiii Amnesty International, "Meeting the challenge: Transforming the Commission on Human Rights into a Human Rights Council", April 2005, AI Index: IOR 40/008/2005, at 8.

xxxiv Outcome document, above note 3.

xxxv GA Res 60/251, para 7 (seats to be allocated on the following regional basis: 13 African States, 12 Asian States, 6 Eastern European States; 8 Latin American and Caribbean States; 7 Western European and Other States).

xxxvi Id at para 8

xxxvii Id at para 8

xxxviii Id at para 9

xxxix Id at para 11

xl Id at para 6

xli Commission on Human Rights, ECOSOC Procedural Resolution on the Closure of the Work of the Commission, E/CN.4/2006/L2,

xlii See below note 43 (numbers of nominees for some regions less than number of seats available as of mid-April 2006).

xliii See (visited 17 April 2006). Only four of the 13 announced Asian candidates for 13 Asian seats had publicly announced "pledges", while 10 out of 13 Eastern European nominees (for 6 seats), 4 out of 10 Latin American States (for 8 seats) and all 9 Eastern States (7 seats) had made such statements.

xliv Suggested elements for voluntary pledges and commitments by candidates for election to the Human Rights Council, (visited 17 April 2006)


xlvi Letter to U.N. Ambassadors about Election Procedures for the new Human Rights Council, 28 March 2006, (visited 17 April 2006)

xlvii In larger freedom, above note 1, at para. 145

xlviii Plan of Action submitted by the High Commissioner for Human Rights, A/59/2005/Add.3, Annex.

xlix Report of the United Nations High Commissioner for Human Rights, A/60/36, para 6 (2005). Those documents have now been supplemented by the Office’s Strategic Plan for 2006-7, which seeks to put into effect the broader goals of the Plan of Action. High Commissioner’s Strategic Management Plan 2006-2007, available at [hereinafter Strategic Plan].

l Report of the United Nations High Commissioner for Human Rights, A/60/36, para 6 (2005)

li Strategic Plan, above note 49, at 5.

lii Strategic Plan, above note 49, at 15.

liii A more secure world, above note 2, paras 145-164.

liv Ibid.

lv Id at paras 157, 159 and 160.

lvi Id at para 164.

lvii In larger freedom, above note 1, at para 91.

lviii Outcome document, above note 3, at paras 84-91

lix However, the General Assembly urge the speedy conclusion of the treaty in its December 2005 resolution on the subject. General Assembly resolution 60/43, para 21 (8 December 2005).

lx Antonio Cassese, "terrorism as an International Crime" in Andrea Bianchi (ed) Enforcing International Norms against Terrorism (London: Hart Publishing, 2004) 211.

lxi The Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996. The current mandate of the Committee, found in General Assembly resolution 60/43 (8 December 2005), requests the Committee, on an expedited basis, to continue to elaborate the draft comprehensive convention on international terrorism, and shall continue to discuss the question of convening a high-level conference under the auspices of the United Nations.

lxii The Committee held its tenth session from 27 February to 3 March 2006. The report of that session (to be issued as A/61/37 (Supp)) was not available as of mid-April 2006.

lxiii As of the date of writing, the only information publicly available is provided by the UN press release on the tenth session of the Committee. It states:

"The draft of the comprehensive convention against international terrorism is almost complete.  The draft convention contains, in its article 2, a common, overall criminal law definition of terrorist acts.  The current discussions revolve around the main outstanding issue relating to the scope of application of the convention, contained in draft article 18."

"Ad Hoc Committee on Terrorism Concludes Current Session: Although Consensus Not Reached, Chairman Expresses Hope for Future Agreement on Comprehensive Convention", UN press release L/3015, 6 March 2006.

It appears that the definition referred to may be that contained in the consolidated text prepared by the chair of the Working Group of the Sixth Committee of the General Assembly prepared in mid 2005 (though that consolidated text was objected to by some States): see A/59/894, Appendix II (2005).

lxiv A recent important initiative is the establishment by the Commission on Human Rights of the position of Special Rapporteur on the promotion and protection of human rights while countering terrorism, established by CHR resolution 2005/80 for 3 years form 2005: see generally The Special Rapporteur, Martin Scheinin of Finland, has submitted one report to the General Assembly in 2005 (A/60/370), as well as a reports to the Commission on Human Rights in 2006 (E/CN.4/2006/98 and Add 1 and 2).