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levels of capacity and resources available to States. Since then a large number of Sates,
including many of the Pacific States, have submitted their second reports.
Samoa and Security Council Resolution 1373
Samoa has submitted two reports to the CTC. Its experience would illustrate, at least for
a small country, the immense amount of work that had to be undertaken to respond to
Resolution 1373, and the demands for international cooperation against terrorism. In a
short space of time, Samoa became a party to one of the international conventions (it was
already a party to several others, and considering adherence to others); enacted the
Prevention and Suppression of Terrorism Act 2002; and prepared a range of amending
legislation in respect of related subjects like the proceeds of crime, mutual assistance in
criminal matters and extradition. New authorities (a financial intelligence unit, and a
transnational crime unit) and coordinating committees involving senior personnel of
many Ministries were established, and steps were taken to set up a computerised database
and other electronic processes for the Government customs and immigration services.
Implications of Security Council counter-terrorism action
With the full authority of Chapter VII of the UN Charter the Security Council has acted
as though it has power to legislate, or at least to set the framework by which members of
the United Nations are required to legislate, certain criminal laws. This action of the
Security Council was not viewed by States as controversial, and probably to be expected
given the horrendous circumstances of September 11. It helped that the Security Council
had avoided controversy by not defining terrorism. Also, the killing of innocent non-
combatants, hostage-taking and other acts generally considered terrorist, along with
aiding and abetting them with financing, were already criminal in the laws of almost all
States. The real question was, and remains, whether these laws, especially the laws
against the financing of terrorist acts, can or will be effectively enforced, either within
national systems or through international cooperation.
Already there is debate whether the Security Council action under Resolution 1373
amounts to the creation of a new international crime of terrorism. It is an interesting
proposition. It does seem to be the case that the framework for Resolution 1373
legislation has been determined by the CTC of the Security Council, and that there
appears to be broad acceptance of this. Whether, however, there is broad acceptance of a
new international crime of terrorism might be another matter. In the negotiations of the
Rome Statute that established the International Criminal Court (ICC) a significant
number of States pushed for terrorism (and also drug trafficking) to be included as a
crime within the jurisdiction of the ICC. However, there was no consensus, in part
because there was no suggestion that terrorism had become established in international
customary law as an international crime. In any event, as has been pointed out,17 it would
be a major departure for the Security Council if compared to other Chapter VII actions as,
for instance, in the establishment of the ad hoc International Criminal Tribunals for the
Former Yugoslavia (ICTY) and for Rwanda (ICTR).
When the Security Council created
the ICTY and ICTR it used its Chapter VII authority to restore and maintain international
17
Kenneth S. Gallant, Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal
Courts, Villanova Law Review, 2003, vol. 48, No.3, 793