Following the Madrid terrorist bombings the United Nations swiftly responded with Security Council Resolution 1530 (2004) [hereafter Resolution 1530] condemning the "ETA" attacks as a threat to peace, urging states to comply with their Security Council Resolution 1373 (2001) obligations in locating those responsible. While a symbol of sympathy, Resolution 1530 unequivocally and incorrectly attributed responsibility, unintentionally prompting a reflection about standards of evidence in denunciations of terrorism. Our consideration of the importance of standards of proof incumbent upon states demanding an institutional reaction following a terrorist attack should be set within the context of proposals that have been made for the establishment of an independent, standing fact-finding commission--perhaps one of the more interesting innovations advanced for the Security Council. (1)
While the notion of adducing evidence might be more honored in the breach than the observance, in the context of self-defense the rhetoric at least is clearly (albeit variably) adhered to. We can note in this respect the actions taken against Libya in 1986, Sudan in 1998, Afghanistan in 2001, and Iraq in 2003 (2) The final example occurred after, and despite, President Bush's caution that the United States could not wait for "final proof ... that could come in the form of a mushroom cloud." (3) However, this (contested) trend towards the production of supporting evidence seemed to take a plunge in the case of Madrid. The condemnation of ETA and the consequent reification of Spain's intense counter-terrorism strategies, hardly seemed to necessitate a half-hearted attempt to adduce any evidence, much less a smoking gun.
Although Resolution 1530 did not envisage use of force, it did concern a state which had been introducing increasingly draconian anti-terrorist measures, and whose treatment of ETA incommunicado detainees had been an issue of concern for the UN Special Rapporteur on Torture in February 2004. (4) Although not foreseeing particular enforcement, Resolution 1530 cross-referenced Resolution 1373. In its December 2001 report to the Counter-Terrorism Committee, Spain specifically recounted its experience with ETA, in relation to its post-9/ 11 initiatives. (5) Consequently Resolution 1530 had significant potential for ETA suspects or detainees in Spain--the Aznar Administration's anti-ETA stance much strengthened by this international endorsement. Bearing this in mind, Resolution 1530's reference to a "mere" threat rather than an act of aggression or a breach of the peace--as some lesser form of Charter breach (6)--should not have dissipated Spain's burden of proof. While Spain was never subject to a criminal standard of proof, it apparently obtained Resolution 1530 on a fraction of the evidence required in any domestic criminal conviction of an ETA suspect. Thus, in its own way, Resolution 1530 removed the presumption of innocence, potentially seriously impacting upon any subsequent judicial criminal proceedings against ETA suspects, had it not been debunked as early as it was. Obtaining resolutions can be a subtle enterprise and once one resolution has been obtained, there is often a seamless segueing towards the next one. While potentially catastrophic in the case of a resolution condemning a terrorist act then demanding enforcement action (or impliedly authorizing self-defense)--even in Resolution 1530's case--consequences such as ordaining other states to extradite ETA suspects (a la Lockerbie) or authorizing force against ETA networks believed to be operating internationally could have arisen.
Sometimes dilatory in action, the Security Council acted within hours of the attacks, thus reinforcing a perception that Spain was experiencing clear and present danger. (7) No debate occurred, with explicatory comments from Council members emerging off-the-record. Spain's certainty as to ETA's responsibility was embodied and emphasized in its lightning-speed drafting and tabling of the resolution. …