Published in July 2018.
This module is a resource for lecturers
Defining the 'Rule of Law'
The concept of the 'rule of law' is a central one to the United Nations system, including in relation to its counter-terrorism activities. As it has been widely recognized by various United Nations organs, entities and Member States, terrorism threatens both the rule of law and the fundamental freedoms of citizens and entire societies; indeed, the General Assembly reaffirmed in the United Nations Global Counter-Terrorism Strategy that one of its central objectives is often to erode the rule of law together with "human rights, fundamental freedoms and democracy…" (United Nations, General Assembly, 2006, A/RES60/288). Consequently, counter-terrorism responses which do not adhere to the rule of law can both undermine their legality and effectiveness, while furthering such terrorist agendas.
Though there is no single definition of the concept of the 'rule of law', its essence was captured by former United Nations Secretary-General Kofi Annan in his report on The rule of law and transitional justice in conflict and post-conflict societies when he described the 'rule of law' as "refer[ing] to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards" (United Nations, Security Council, 2004, S/2004/616, para. 6).
In a counter-terrorism context, United Nations organs and entities regularly convey the strong message that respecting human rights while countering terrorism is not only a matter of legal obligation, but is critical to the ultimate success of any counter-terrorism strategy. For example, a recent report of the United Nations High Commissioner for Human Rights noted that:
Effective counter-terrorism measures and the protection of human rights are complementary and mutually reinforcing objectives, which must be pursued together as part of States' duty to protect individuals within their jurisdiction. Experiences in countries around the world have demonstrated that protecting human rights and ensuring respect for the rule of law itself contribute to countering terrorism, notably by creating a climate of trust between the State and those under their jurisdiction. (United Nations, General Assembly, Human Rights Council, 2016, A/HRC/34/30, para. 56).
This is illustrated by the indivisible relationship between international human rights law and criminal law (both national and international). From a rule of law perspective, the essence of criminal law is to delineate the parameters of what constitutes acceptable and unacceptable behaviour within a particular societal context. If, e.g., the definitions of offences are ambiguous then the main function of criminal law may be undermined, thereby facilitating the possibility of other executive-led actions which may be contrary to upholding the rule of law.
Furthermore, United Nations organs and entities, including the United Nations General Assembly and Security Council, regularly emphasize the importance of adhering not only to international human rights law, but also to international humanitarian law and international refugee law (UNSC Resolution 1373 (2001)), notably within the context of the United Nations Global Counter-Terrorism Strategy which is discussed next.