By Rumyana Grozdanova, University of Liverpool
Terrorism is not a new phenomenon, but since the attacks of 11 September 2001 it has been characterised as an unprecedented transnational challenge requiring new laws and international collaboration to combat it. The adoption of UN Security Council Resolutions supporting expansive counter-terror measures, and within some regional organisations and states, the rush to support and implement these measures – all under the rubric of the right of states to individual and collective self-defence – now has the appearance of a well-rehearsed ritual in the aftermath of any particular act of terrorism.
9/11 itself was treated as a singular and unprecedented event. This is illustrated by Security Council Resolutions 1368 of 12 September 2001, 1373 of 28 September 2001, and 1377 of 12 November 2001, all focused on the threat to international peace and security caused by terrorist acts. The Resolutions call for urgent international action to combat terrorism. They also reaffirm states’ ‘inherent right of individual or collective self-defence’.
In concert with action by the Security Council, for the first time ever, on 12 September 2001, NATO invoked Article 5 of the North Atlantic Treaty, which states:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all … if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force …
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
A subsequent NATO Press Release declared, ‘if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty’. On the basis of this phrasing, the NATO invocation of Article 5 was initially considered to be provisional. Following a number of classified briefings by the US, the conditional clause was removed. In October 2001, the NATO Allies declared their unanimous assessment that the 9/11 attacks had been directed against the US from abroad, thus activating Article 5 provisions. Eight measures intended to enhance the capacity of states to combat terrorism were agreed upon. They provided for both individual and collective action. Of particular significance is that these measures were agreed at the request of the US. According to NATO procedures, it is the International Staff that have the responsibility for drafting documents and resolutions in NATO. In this case, however, the language of the measures was unilaterally drafted, re-drafted and proposed by the US.
It should be emphasised that Article 5 allows for self-defence measures by individual states. In explaining the implications of the decision to invoke Article 5, NATO outlined that while any collective action would be decided by the North Atlantic Council, the US could also carry out independent actions, consistent with its rights and obligations under the UN Charter. A report by the Council of Europe’s Committee on Legal Affairs and Human Rights suggests that there were additional classified components of the NATO measures that have remained secret.
At the same time as 9/11 led to a proliferation of new laws and international instruments for combatting terrorism, it was used by the US to justify disengagement from legal norms and obligations. The US characterised the events of 9/11 as an act of war, arguing that the attacks on the Twin Towers were the culmination of a ‘lengthy and sustained campaign’ by Al Qaeda against military and civilian targets in the country. The previous events referred to were the bombings of the World Trade Centre in 1993, Khobar Towers in Saudi Arabia in 1996, US embassies in Kenya and Tanzania in 1998, and the U.S.S. Cole in 2000. The claim that the US was engaged in a unique and a-symmetric war was further used to justify actions outside the bounds even of the laws of war. The use of private charter companies to operate rendition flights, the creation of the ‘High Value Detainee’ programme, and reliance on black site prisons such as the Salt Pit, all deprived the individuals detained of access to rights enforcement or legal review of their situation.
Following the attacks in Paris on 13 November 2015, in a statement reminiscent of those made by George W Bush and Tony Blair fourteen years earlier, President Francois Hollande announced that France is at war with IS/Da’esh. The phrase ‘War on Terror’ was first used by then President George W Bush in September 2001 in an address to a joint session of Congress. The then British Prime Minister Tony Blair used the phrase ‘at war with terrorism’ on 16 September 2001 as a response to reports of the British citizens killed on 9/11.
After the attacks in 2015, France invoked Article 42.7 of the Treaty of the European Union (TEU) for the first time. The similar tone and operation of Article 42.7 to Article 5 of the North Atlantic Treaty explains why France – as a European Union member state – opted to rely on it rather than on Article 5. Article 42.7 states that:
If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter…
In addition to invoking the support of other EU member states to combat jointly the threat of IS/Da’esh, President Francois Hollande announced that France was in a state of emergency. Initially this state of emergency was to extend for a period of three months until 26 February 2016. It is now likely to be extended for another three months. A number of expansive counter-terrorism measures to pre-empt further terrorist acts have been adopted, including significant increases in police power to conduct searches and make arrests without prior judicial warrant. Amnesty International has recently published a report condemning the measures as disproportionate and discriminatory. While it is too early to assess exactly what the impact of these measures will be on civil liberties and human rights, the muscular domestic response within France, and internationally as part of the coalition campaign against IS/Da’esh, certainly raises concerns.
Of perhaps even more concern are other aspects of the international response to the events of 13 November. The newest UN Security Council Resolution, adopted on 20 November 2015 – Resolution 2249 – unequivocally condemns ISIS/Da’esh. The Resolution reaffirms that terrorism constitutes one of the most serious and unprecedented threats to international peace and security and as such should be combatted by all means necessary. It urges member states to take all necessary measures to ‘redouble and coordinate their efforts to prevent and supress terrorist acts committed specifically by ISIS (Da’esh)’.
The Security Council Resolutions adopted in the aftermath of 9/11 were subsequently relied on by states as justification for expansive domestic and transnational counter-terrorism measures. With these Resolutions – and others that have followed, already providing states with wide scope to legislate for expansive counter-terrorism measures domestically, and to cooperate internationally, the necessity of an additional Resolution with similar text and tone is questionable. The language of Resolution 2249 is generally vague, but the specific references to ISIS/Da’esh suggest that the states leading the campaign against the group are pre-emptively seeking to justify and legitimise what may be a lengthy transnational counter-terrorism campaign similar to the earlier ‘War on Terror’.
President Obama and Prime Minister David Cameron have already warned ‘of a lengthy Syria campaign’. Yet again we may experience state disengagement from civil liberties and human rights, exemplified by a disproportionate focus on, and discrimination against, certain ‘suspect communities’ in the fight against this ‘new’ terrorist threat. 
 Committee on Legal Affairs and Human Rights, Secret Detentions and Illegal Transfers of Detainees involving Council of Europe Member States, AS/Jur (2007) 36, p. 18
 Committee on Legal Affairs and Human Rights, Secret Detentions and Illegal Transfers of Detainees involving Council of Europe Member States, AS/Jur (2007) 36, p. 19
 See the fascinating article by Christina Pantazis and Simon Pemberton, ‘From the ‘Old’ to the ‘New’ Suspect Community: Examining the Impacts of Recent UK Counter-Terrorist Legislation’ (2009) 49 British Journal of Criminology 646 – 666.