A t ec.zsz lzoo7 lcRP./Add. 1 I

12 February 2007 Original: English

Ad Hoc Committee established by General Assembly resolution 5l/210 of 17 December 1996
Eleventh session 5,6 and 15 February 2007

Draft report of the Ad Hoc Committee
Rapporteur: Mr. Lublin Dilja (Albania)

Annex Informal summaries by the Chairman on the exchangeof views in plenary meeting and on the results of the informal consultations and informal contacts on the draft comprehensive convention on international terrorism and on the question of convening a high-level conference
A. General 1. During the general exchange of views at the 38th meeting of the Ad Hoc Committee, on 5 February 2007, delegations reiterated their condemnation of international terrorism in all its forms and manifestations,with somestressingthat it cannot be justified on any grounds,irrespectiveof its motivations and objectives. The continuing importance of the work in this field by the United Nations in general, and the General Assembly in particular, was highlighted. It was recalled that internationalterrorism was a global phenomenon requiring a global response. In this connection,some delegationswelcomedthe adoption by the Assembly of the United Nations Global Counter-TerrorismStrategy in its resolurion 60/288 of 8 September 2006 and recalledits relevance the work of the Ad Hoc Committee. to 2. It was stressed by some delegations that the fight against international terrorism should be conductedin conformity with the Charter of the United Nations, as well as relevant provisions of international human rights, international humanitarian law and international refugee law. Some other delegationscalled for an enhanceddialogue among civifizations and stressed their rejection of any attempt to link terrorism with any religion, race,culture or ethnic origin. Concernwas also expressedby some delegationsover the possible use of a double standardin the

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fight againstinternationalterrorism,while other delegations emphasized needto the address root causes terrorism. the of

B.

Draft

comprehensive

convention on international

terrorism

3. During the general exchange of views at the 38th meeting of the Ad Hoc Committee, delegations reiterated the importance they attached to the early conclusion of the draft comprehensiveconvention on international terrorism. It was considered that such an instrument would constitute an important addition to the counter-terrorism legal framework establishedby the existing universal instruments. Delegations emphasizedtheir continued willingness to explore new ideas and proposals, with a view to resolving the outstanding issues and concluding a consensustext. It was noted that following the adoption of the Global CounterTerrorism Strategy,the finalization of the draft comprehensiveconvention remained the most important counter-terrorism initiative outstanding from the 2005 World Summit Outcome(Assembtyresolution60/l). 4. Some delegationsreiteratedtheir commitmentto reaching an agreementon the text of the draft conventionpreferablyon the basisof the former coordinator'stext. It was noted that the instrument to be concluded should represent a significant addition to the existing counter-terrorism legal framework and should not provide strength to those who use violence againstcivilians to further political objectives. Moreover, the instrument should not createambiguity or confusion about the critical distinction betweenterrorismand violationsof internationalhumanitarian law. 5. Some other delegationsemphasized importanceof including, in the draft the comprehensive convention,a legal definition of terrorism to distinguishit from the legitimate struggle of peoples for self-determination.In addition, some other delegationsexpressed view that Stateterrorism would have to be included in any the comprehensiveconvention on international terrorism. It was reiterated that acts of State terrorism were of seriousconcernto the internationalcommunity and that such acts only contributed to a vicious cycle of terrorism. 1. Summary of briefing on the results of intersessional informal contacts 6. In her briefing on the informal intersessional contacts,Maria Telalian recalled that there was a wish among delegationsduring the consultations in the context of the 2006 Working Group of the Sixth Committee for a mechanism to informally coordinate contacts among delegationsin the intersessional period in the lead-up to the convening of the current sessionof the Ad Hoc Committee. Following further consultations with the Friends of the Chairman, she was requestedto coordinate such informal contactson behalf of the Chairmanand of the Bureau 7. Several such contacts with delegations were organized in January and February 2007, and they took the form of informal meetings with individual delegations and weekly scheduledcontacts,which were announcedin the Journal of the United Nations on 11, 18 and 25 Januaryand 1 February.The purposeof the bilateral contactswas to gain funher insight into the views of delegatiohson the outstanding issues concerning the draft comprehensive convention, while also seeking to preservethe integrity of the bulk of the negotiatedtext of 2000; the occasion of the contacts was also used to apprise new delegatesof the latest developments.

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8. In order to assistdelegations, compilation of the various proposalsthat had a focused on the outstanding issuesin recent years was preparedfor circulation. The circulation of the most recentproposalswas not in any way intendedto prejudice the understandingconcerning the working methods of the Committee and Working Group that all written and oral proposalsremainedon the iable. Also included in the compilation was an information note containing ideas that had emerged during bilateral contacts at the 2006 sessionof the Ad Hoc Committee and had been made available at ttre close of that sessionwithout any substantive debate;the Chairman of the Ad Hoc Committeehad on that occasionencouraged to delegations examine thoseor any other ideasin depth amongthemselves and in their capitals. 9. During the intersessional contacts,delegationsaffirmed their commitment in support of the continuing efforts to rinalize as a matter of priority the draft comprehensiveconvention on international terrorism. While delegationsreaffirmed their positions and alluded to their preferences, Ms. Telalianwas encouraged the by willingness of delegations to explore possibilities that would help in reaching consensuson the text; there was a guarded determination among delegations to make a renewedattempt to find a solution to the outstandingissues,a focusedsense of responsibility to explore possible openings in the context of what had already been achieved and a recognition of the need to presewe the integrity of previous accomplishments. 10. During the intersessional contacts,a few delegationsmade some preliminary commentson the substance some of the ideas contained in the information note, of particularly on the idea that nothing in the convention makes unlawful acts committed in situations of international armed conflict, which are governed by international humanitarian law and which are not unlawful under that law, pointing out that it covered only situationsof international armed conflict, leaving out of the scopeof the draft convention situationsof non-internationalarmed conflicts, which, in their view did not find any justification in existing international humanitarian law. Likewise, they emphasized that the term "unlawful" used in that idea was ambiguousand confusing.Othersdid not cornmenton the ideas,electingto observe that the matterswere being studiedin the capitals. 11. Moreover, as in the past, the focus of the contactswas on draft article 18. Although no specific new proposals were presented,a number of delegations indicatedthat the proposalcontainedin documerrtAlC.6|60ANF/1was a step in the right direction. With respectto paragraph of draft article 18, it was notedby some 2 delegationsthat a clear delineationbetweenthose activities that were governedby international humanitarian law and those covered by the draft convention was necessary. While documentA/C.6|6O,/INF.1 containedelementsthat held promise, the proposal needed further work, and there was a willingness to explore other possibilitiesand optionsthat would enhance needed appreciation the demarcation of in order to carve out the scope of application of the draft convention. Some delegationsnoted in that regard the possibility of capturing the essenceof the demarcation the form of a "without prejudice"clause. was emphasized some in It by other delegationsthat such an undertaking should be worked around the languageof draft article 18 without departing too much from it. Some delegationsdoubted that the proposal openedany further avenuesfor compromise,. 12. During the intersessional contacts,some delegationsnoted that it would be necessaryto explore further the possibility of clarifying the understandingof the

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scope of the exclusion in paragraph3 of draft article 18, in particular the rules of international law that applied particularly in peacetime to activities of military forces of a State acting in an official capacity. In this connection,Ms. Telalian recalledthat the InternationalConventionfor the Suppression TerroristBombings of and the InternationalConvention for the Suppression Acts of Nuclear Terrorism of contained in the preamble some languagethat was intended to shed light onto this question.The penultimatepreambularparagraph reads: Noting that the activities of military forces of States are governed by rules of international law outside the framework of this Convention and that the exclusionof certain actionsfrom the coverageof this Conventiondoesnot condone or make lawful otherwise unlawful acts, or preclude prosecution under other laws, 13. Ms. Telalian concluded her briefing by expressingconfidencethat from her bilateral contacts there seemedto be some ideas that could form a basis for a possible package,which in her view would help to move the processforward and would facilitate reachinga compromisesolution. 2Summary of statementon the results of informal contactshetd during the current session 14. In her statement on 9 February 2007, Ms. Telalian noted that additional informal contacts with delegationsduring the current sessionhad assistedher in forming a better impressionof their views. Accordingly, shehad reflectedfurther on the ideas that had been presentedintersessionallyand thought it useful to present a text that she hoped captured the concerns of delegations in a way that would facilitate agreement elementsof an overall package. on The text readas follows:

Preamble Add preamble from the NuclearTerrorismConvention the Terrorist and
Bombings Convention Noting that the activities of military forces of Statesare governedby rules of international law outside the framework of this Convention and that the exclusionof certain actionsfrom the coverageof this Conventiondoesnot condone or make lawful otherwise unlawful acts, or preclude prosecution under other laws, Text relating to article 18 of the draft comprehensive convention 1. Nothing in this Convention shall affect other rights, obligations and responsibilitiesof States,peoplesand individuals under internationallaw, in particular the purposesand principles of the Charter of the United Nations, and international humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governedby this Convention.

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3. The activities undertaken the military forcesof a Statein the exercise by of their official duties, inasmuch as they are governed by other rules of international law, are not governedby this Convention. 4. Nothing in this article condones makeslawful otherwiseunlawful acts, or nor precludes prosecution under other laws; acts which would amount to an offence as defined in article 2 of this Convention remain punishable under such laws. 5. This Convention is without prejudice to the rules of international law applicablein armedconflict, in particularthoserules applicableto acts lawful under international humanitarianlaw. 15. In explaining the elementsof a packageconsistingof a preamble,an addition to paragraph4 and a new paragraph5, it was noted that the preamble was basedon languagecontained in the Terrorist Bombings and Nuclear Terrorism Conventions. 16. With respectto paragraph3 of draft article 18, it was noted that it had always been understood that it was intended to cover both procedural and substantive aspects.The phrase'oinasmuch they are governedby other rules of international as law" embracedconduct both lawful and unlawful under international law. It was pointed out that in reality, military forces of a State were subject to a code of conduct separatefrom that applicable to civilians, which included trial by court martial; moreover, when such forces were engagedin peacekeepingoperations, different rules of engagement applied. 17. It was fuither stated that paragraph3, as read with paragraph4, was to be understood as meaning that it did not make lawful otherwise unlawful acts. Moreover, such acts, if unlawful did not preclude prosecution under other laws. In order to accentuatefurther that no impunity was intended and to remove any doubts as to the scope of paragraph 3 as read with paragraph4, there was an addition to paragraph4, which sought to stressthat there was an inner core of offences that should remain punishableirrespectiveof the regime that would apply. The use of the word "punishable"denotes legal regime concerning the thoseacts. 18. With regardto the new paragraph it was noted that it consistedof a general 5, statement that was subsequentlyclarified with regard to rules of international law applicable for certain acts that would be lawful under international humanitarian law. It was underscored that it would be for the parties to the convention and consequently the judicial authorities to make interpretations in the light of circumstancesin relevant specific cases.Stressingthat the draft convention was a criminal law enforcementinstrument, it was noted that parties would be responsible for its implementation in the context of other rules that formed part of the international legal system. Any relationship between the convention and international humanitarian law would have to be determinedin accordancewith the circumstancesparticular to each case. What was key to the addition was the principle that international humanitarian law was not prejudiced by the convention and that the elementsoffered provided sufficient guidance for those who would be responsible.for its interpretation and application to proceed with its good-faith implementation. tg. It was further clarified that in trying to overcomea problem that had legJl and political ramifications, an attempt had been made to do so legally by renvoi to the other applicable law and by recognizing the relevanceof other laws that would be

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applicable in similar circumstances;in such circumstances satisfactorydelineation a would not be achievablebecausein such mattersthere was potential for oveflap. 20. It was stressedthat the elements needed to be considered carefully and reflected upon as an honest attempt to bridge a gap that had been insurmountable since 2000. All the elements neededto be read in their totality as providing a comprehensive exclusionaryscopeof applicationclauses. 21. Delegations were urged to consult with their capitals with a view to ascertainingwhetherthoseelements could form the basisof an overall package. C. Question of convening a high-level conference 22. During the 38th meeting of the Ad Hoc Committee, on 5 February, some delegations reiterated their full support for the convening of the high-level conference and they urged all Member Statesto support it. Some other delegations expressedtheir support in principle while indicating their flexibility regarding the timing. It was noted by some delegationsthat the question should be considered following an agreementon the draft comprehensiveconvention. The sponsor and other delegations observed that the question of the convening of the conference should be considered without linking it to the draft comprehensiveconvention, as the conferencecould addressother issues,such as the underlying causesof terrorism and the definition thereof. 23. In the informal consultationson 6 February, the sponsordelegation of Egypt provided an update on some developmentsrelating to the convening of a high-level conference. It noted in particular that the proposal had been endorsed by the Movement of Non-Aligned Countries in the 2006 PutrajayaDeclaration, adopted at the Ministerial Meeting of the CoordinatingBureau of the Movement (A160110025/20061718, annex V), as well as in the final documentof its 2006 summit, held in Havana(Al6t/472-S/20061780, annexI). In the view of the sponsordelegation,the high-level conferencewould adopt a declarationof principles condemningterrorism and a plan of action to fight terrorism and to addressits root causes.It reiteratedthat the convening of the conferenceshould not be tied to the completion of the work on the draft comprehensiveconvention, as some of the topics to be addressedby the conference would not be covered in the discussions on the draft convention. Moreover, the conferencewould be helpful in clarifying certain misunderstandings relating to terrorism and could also accelerate adoption of the convention.This the position was supported somedelegations. by 24. Some other delegationsreiteratedtheir support for the considerationof the proposal in principle. However,they emphasized that it should be consideredafter the finalization of the draft convention and upon arriving at a consensuson the topics that shouldbe discussed the conference. by

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