Max Planck Institute for Foreign and International Criminal Law

Since the attacks of September 11, 2001, the war on terror has accelerated the internationalization of criminal law. A new actor in this process is the United Nations Security Council, which, to an increasing extent, shapes national criminal law through legally binding resolutions and, in so doing, contributes to the internationalization of criminal law. A critical analysis of these resolutions is urgently needed because it is doubtful whether the Security Council, as a highly political, unrepresentative body with no democratic legitimacy, has the authority to issue such criminal law measures.

Particularly in Resolutions 1373 (2001) and 1540 (2004), the Council developed legislative measures in the area of criminal law and for the first time obligated the then 192 Member States of the United Nations to incorporate specific offenses into their national criminal law. According to Resolution 1373 (2001), for instance, all States must "criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts." Furthermore, the Council itself imposes punitive sanctions on individuals, groups, and organizations. The Resolutions 1267 (1999), 1333 (2000), and 1390 (2002) provide that all States must freeze and seize funds and other financial resources of persons who are listed as suspected terrorists on a so-called "blacklist." They must also impose travel restrictions on these persons. The list of sanctioned persons is prepared, managed, and regularly updated by a Sanctions Committee established by the Council. Thus, the Council itself created the procedural structures for imposition of the sanctions. Even though representatives of public law have already been dealing with these resolutions for some time now, the resolutions have not yet been studied with respect to their criminal law content.

Thus, the goal of this project is to provide a comprehensive overview of these resolutions and to subject them to a detailed criminal law analysis. The project will then address the issue of whether the Security Council has the necessary competence as defined by Chapter VII of the Charter of the United Nations to take action. This is doubtful because, according to the classic view, the Council, a purely executive organ, is now also claiming legislative and judicial authority in the area of criminal law. In light of the Council’s increasing exercise of sovereign-like rights, the question arises as to whether a greater degree of democratic legitimacy on the international level – and especially within the United Nations – should be required and how it should be achieved.

The methodology consists of an evaluation of the resolutions themselves as well as of the relevant academic literature. This analysis takes place in three steps. In the first step, the measures engaged in by the Council are presented and analyzed with respect to their relationship to criminal law. In a second step, the competence of the Council in light of Chapter VII of the Charter of the United Nations is examined. Finally, the third step inquires as to the existence of grounds on the international level that would lend democratic legitimacy to the Council’s actions.

On the basis of the scholarly analyses to date, it appears doubtful whether the Council is entitled, in accordance with Chapter VII of the Charter of the United Nations, to the competence it claims. The Security Council seems clearly to have overstepped its competences – both horizontally as well as vertically. Because a sufficient degree of democratic legitimacy on an international level appears to be unlikely in the short term, the actions of the Council in the area of criminal law should be restricted in the future.