Ad Hoc Committeeon measures to eliminateinternational terrorism 29 June2009 2ndmeeting Statement by Ms. Maria Telalian (Greece)on the bilateral contactsand informal meetingsconcerningoutstandingissues relating to the draft comprehensive conventionon internationalterrorism I thank you very much Mr. Chairman. After a long lull sincewe last met in the contextof the working group of the Sixth Committee, as part of an effort to re-engagedelegationson matters relating to the draft comprehensiveconvention on international terrorism, last week, I held one round of bilateral contactswith interested delegationson Tuesday23 June and a seriesof other informal contactswith delegations the rest of the week. in As on previous occasionsthe purpose of the bilateral contactsand informal meetings was to afford an opportunity for a better appreciation of positions of delegationsin light of the elementsof a possi$le package presented in 2007 in context of the eleventh session of the Ad Hoc Committee. It is also an occasionto brief new delegationson the state of play in the negotiations. I have had ample opportunity in the past to explain the rationale for the elements of the package proposal and its background context particularly when it was introduced in 2007, and such explanationsmay be found in the reportof the eleventhsession (A162137).In subsequent reports, namely the oral report to the Sixth Committee of the Chairman of the Working Group on measuresto eliminate internationalterrorism in 2007 at (NC.6l62lSR.16),the report of the Ad Hoc Committee the twelfth session (A163137) andthe oral report to the Sixth Committeeof the Chairmanof the Working Group on measuresto eliminate internationalterrorism in 2008 (AlC.6/63lSR.l4) further clarificationshave been offered in respectof the elements. who made I am most appreciativeof the efforts made by delegations time last week to consult with me and sharetheir hopesand concerns.The continuing efforts to find a solution to the outstandingissuesare a shared quest.I wish to report that in my meetingsthere is an interestamong some to delegations begin to project periodswithin which the currentprocessmay This is the be concluded.This senseof guardedoptimism is understandable. on ninth year in which the discussions the outstandingissueshave entered. More importantly, the approach that has been taken thus far has been to build upon proposalswhich in the past have been the basis of concrete outcomes. At the same time, there seems to be recognition among delegationsthat the negotiations are in a state of inertia. A little push of goodwill and a realization that the twenty-fifth mile of the marathon has move forward. beenreachedmight help the process I still see a tendency,to hold on to previouslyheld positionswhile signaling a willingness to remain engaged. Indeed, delegations have reiteratedthe importancethat they attachto the early conclusion of the draft convention. In this, there is a ray of hope that soon we may be able to concludeour work. I also still see a tendency, to read specific situations, events and circumstances into the proposedtext. Natural as that mindset might be for lawyers,it needsto be eschewed when involved in a legislativeexercise of the type that we embarkedupon. In d legislativeexercisethe essential role is to projectprinciples. In my previous interventionsthe following aspects,which seek to distil suchprinciplesand pointsof convergence, have beenechoed: (a) The draft convention is designedto serve as a law enforcement instrument.Accordingly, the needto preserveits acquis as an instrumentfor ensuring individual criminal responsibilityon the basis of an extradite or prosecuteregime has been stressed. Such an approachhas been followed in the various other multilateral counter-terrorism instruments,including those adoptedby the Ad Hoc Committeein recentyears. (b) At the same time the draft convention ought not to be seen in isolation of other rules of internationallaw; but as an additional building block in an already existing legal framework that governs the conduct of relations among States. Indeed, the draft convention contains specific obligationsof cooperationbetweenStatesin the preventionand suppression of terrorist activities taking place in their own territories, in particular in draft article 8, thus codiffing in an elaboratemanner and building upon relevant provisions contained in existing anti-terrorism conventions.The results achieved are reminiscent of the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Co- operationamong Statesin accordance with the Charterof the United Nations (GeneralAssembly resolution2625 (XXV). (c) In carving out a niche for the scope of application of the draft conventionthe negotiatingprocesshas not beenoblivious to the fact that the draft convention would operate in the context of other existing legal regimes.In particular, three regimesare implicated by the draft convention, namely the law under the Charter of the United Nations, international humanitarian law, and internationaland national "security law", which, inter justice, in practically all jurisdictions,the alia, separates when administering activities of the civil administration from thoseof the militarv. J Accordingly, arl attempthas made to establisha demarcation between what is covered by the draft convention on the one hand and what is safeguarded and what is not prejudicedon the other. In particular,activities of armed forces of a State during armed conflict, as those terms are understoodunder internationalhumanitarian law are governedby that law; the overarching objective being that the sanctity of international humanitarian law, together with developments thereof, is not to be prejudiced by the draft convention. Equally essential has been the recognition that the draft convention is not intendedto impose international humanitarianstandards Statesthat would becomepartiesto it if they were on not bound by such standards is it intendedto supersede nor such obligations where they alreadyexisted. Moreover, an attempt has been made to ensurethat the exclusionary elementssafeguard, far as possible,the applicationof such other law, by, as 4 for instance,not renderingunlawful otherwise lawful acts under such law, while also seekingto close any loopholesthat might open possibilitiesfor impunity for certain categoriesof persons.The key consideration being the principle that no impunity is intendedin respectof military forces of a State who might comrnit offencesthat may be similar to the onesthe convention proscribes as such members would be prosecutedunder other applicable laws. (d) It has also been stressed that the approachthat has exclusionary clauses is not without precedent.Negotiations leading to the adoption of several counter-terrorism instruments, including the International Convention for the Suppression Terrorist Bombings and the International of Convention for the Suppression Acts of Nuclear Terrorismhave wrestled of with similar concernsand have resolvedthese concernssuccessfullv.It is understandablethat the reference to "comprehensiveconvention" might have heightenedcertainexpectations..There ought to be a certainelementof satisfaction in the fact that we have come a long way to even have a definitional article for individual criminal responsibilitylike the one we have in draft article 2.It is recalledthat somesuggestions have beenmadeto have a different title to the draft conventiorqthis might assistlower expectations hitherto associated with the word "comprehensive".As we move forward this is an idea which would require seriousconsideration. The need to have exclusions is not without factual or legal significange.It is needless point out that without suchexclusions draft to the conventionwould make unlawful conductwhich otherwiseis not prohibited in a variety of circumstances. Thus, for instanceif deathwere to occur as it that would intimid atea does in an armed conflict situation in circumstances population such factual situationwould conceivablyfall within conductthat the draft convention seeks to proscribe. This in turn would imply that, legally, by concludingthis draft conventionsomewell settledrules will have unwittingly been implicated or modified when the current format is not the appropriatenegotiating forum to do so. We should not by elaboratingthe "New York law" on combating international terrorism alter the "Geneva law" of armedconflict. (e) Instead of reflecting the possible exclusionsas part of the draft article that proscribesparticular conduct, in this case draft article 2, the after long drawn negotiations, negotiatingprocessconsideredit appropriate, "without prejudice" and "applicable to reflect such exclusionsin the form of law" clauses,&s draft article 18 now seeks to do. Such an approachis intendedto make the circumscriptionmore completeand legally consonant. Excluding the activities of armed forces during an arrned conflict from the conventiondoes not grant them scope of application of the comprehensive impunity. For instance,a range of violations of internationalhumanitarian law are punishableunder that law and must be prosecutedby all States. Indeed, internationalcriminal law has made some proscriptionssubject of internationalcriminal jurisdiction. Effectively, the exclusionspreservewhat alreadyexistswithout in any way prejudicingor prejudgingtheir application the necessitate applicationof that other when a set of factual circumstances law. After all by elaborating this draft convention we are only adding an extra tool in an existing legal tool box available to Statesto use when dealingwith actsof violenceand criminality. It is theselegal principles,thosethat assure continuing application the of existing law, operatingalongsidethe principles that the draft convention seeksto elaborate,which are the preoccupationof our efforts. I have no doubt in my mind that we are on the right track. trn light of the precedents that we have followed, the approachwe havetaken is beyondlegal reproach. We must however garnerthe necessary political will and this we must. Thank vou Mr. Chairman.