Centralizing Human Rights in the Global Counter-Terrorism Strategy

The Global Counter-Terrorism Strategy (GCTS), originally adopted by the United Nations General Assembly in 2006, is currently undergoing its sixth review by states and the General Assembly. This review process is state-led and (ideally) produces compromise among state priorities, enabling a comprehensive, strategic and well-positioned, cross-cutting strategy on counter-terrorism to shape global, regional and state responses to terrorism. The current global GCTS strategy contains four distinct, but interrelated, pillars. These are: Pillar I: Addressing the Conditions Conducive to the Spread of Terrorism; Pillar II: Preventing and Combating Terrorism; Pillar III: Building State Capacity and Strengthening the Role of the United Nations; and Pillar IV: Ensuring Human Rights and the Rule of Law.

As states continue to negotiate and refine the substance of a revised Global Counter-Terrorism Strategy, we offer some reflections on one main aspect of the strategy that is in need of meaningful support and implementation in practice: its human rights dimension, which is both a cross-cutting theme and one of the central pillars. Strengthening this pillar is an imperative for this review. As a 2017 report by the International Federation for Human Rights (FIDH), entitled the United Nations Counter-Terrorism Complex, sets out:

The UN enshrined the protection of human rights in counter-terrorism efforts in Pillar IV of the GCTS, but in practice, human rights in the context of the UN’s counter-terrorism work is most often minimized to a generic line in a resolution, reduced to a few questions on a country visit survey, comprised of a small staff sprinkled throughout the Secretariat and Security Council bodies, securitized in the PVE agenda and under-funded in its programming.

Human rights experts within the UN Counter-Terrorism complex are scattered throughout a variety of mechanisms with overlapping mandates, though the responsibility to conduct human rights programs and provide oversight is principally shouldered by the Office of the High Commissioner for Human Rights (OHCHR), which does not have sufficient resources and support.

The lack of personnel and financial support for human rights is a clear weakness in the implementation of Pillar II: Preventing and Combating Terrorism.

Robust data across regions confirms that effective oversight of human rights compliance, rule of law, and state accountability, undergird long-term and successful counter-terrorism action by states. Bolstering legality and improved governance performance and accountability, and ultimately, state legitimacy, is best achieved by delivering on a state’s human rights obligations. Counter-terrorism effectiveness is intrinsically tied to the protection and promotion of human rights. This view was expressed in 2016 by then-UN Secretary General Ban Ki-Moon’s reflection on how to prevent terrorism and violent extremism at the individual level:

There is no single pathway, and no complex algorithm that can unlock the secrets of who turns to violent extremism. But we know that violent extremism flourishes when aspirations for inclusion are frustrated, marginalized groups linger on the sidelines of societies, political space shrinks, human rights are abused and when too many people—especially young people— lack prospects and meaning in their lives.

The current Global Counter-Terrorism Strategy affirms three aspects of the relationships between countering terrorism and protecting human rights:

(a) Measures taken to counter terrorism must comply with international human rights, humanitarian law, and the rights laid out in the Refugee Convention. This requires a strong presence of human rights and human rights expertise in Pillar II.
(b) Respect for all human rights and the rule of law is the basis for the fight against terrorism and essential to all components of the strategy. This is what Pillar IV is all about.
(c) The denial of human rights and the rule of law might, in itself, create conditions that are conducive to terrorism. This insight is a foundational aspect of Pillar I and, more clearly than anything else, demonstrates the strategic value of human rights compliance in counter-terrorism.

It is useful to recall here that Security Council resolution 1963 (2010) not only echoes Pillar I of the Strategy, which reiterates that violations of human rights are one of the conditions conducive to the spread of terrorism, but goes a step further by introducing a positive formulation. For the first time in this resolution, the Security Council recognized that terrorism would not be defeated by military force, law enforcement measures, and intelligence operations alone, but underlined inter alia, the need to strengthen the protection of human rights and rule of law.

Let us reflect further on the relationship between the denial of rights and the mosaic of terrorism. The evidence-based, social science data available to us, plus recent reflections within the UN system — including the excellent UN Development Program Report titled, “Journey to Extremism in Africa” — demonstrate that human rights violations and grievances – actual or perceived – constitute conditions conducive to the spread of terrorism. Human rights grievances are among the ‘structural causes’ of terrorism by creating a recruitment ground for potential terrorists. And individual or family-based experiences of human rights violations may often be the ‘triggering cause’ that turns general resentment into an individual decision to resort to violence. If we take as a given then the relevance (formally) of human rights to the understanding, management and ending of terrorism, what does the implementation of this mean in practice for the Global Counter-Terrorism Strategy?

Step 1: The articulation of the essential necessity of human rights in the GCTS constitutes a symbolic and overarching framework guiding national, regional and global action. This is a positive development. It gives traction to claims based on human rights in a range of areas from meaningful rights-based provisions for victims of terrorism, to ensuring that the actions taken by states in countering terrorism (arrest, detention, trial, surveillance, use of force) comport with a states’ human rights obligations. In theory, it ought to put a brake on the abuse and misuse of counter-terrorism norms to nefarious ends, including discriminatory targeting; crackdown on legitimate public protest, dissent and political viewpoint; and indiscriminate use of force and extra-judicial execution. In practice, given the ongoing and persistent violations of human rights associated with counter-terrorism regimes in national systems, this is not the case. Nonetheless, as a starting point, there is power and value to the reiteration of human rights as an enduring value.

Step 2: Requires moving beyond rhetorical invocation to implementation. Specifically, it mandates state compliance with human rights in their global, regional and national counter-terrorism strategies. How would that compliance be achieved? One place to start is with the UN’s own architecture and institutions and exposing (or not) the centrality of human rights to the counter-terrorism enterprise at the UN.

Where do human rights and the rule of law sit in the counter-terrorism architecture? Here, we have to say the picture is not rosy. Since the passage of UNSCR 1373 in 2001, the role of human rights in the architecture of counter-terrorism has been limited and highly contested. Our colleague, former UN Special Rapporteur on Counter-Terrorism Ben Emmerson, in his final Report to the Human Rights Council in 2017, trenchantly outlined the marginality of human rights to the global enterprise of counter-terrorism (at para. 63).

… [t]he absence of a systematic and substantial human rights element in the Security Council’s implementation machinery and the relative weight placed on human rights as against counter-terrorism and security policy are issues that raise real concern …When all the threads are drawn together, there is simply insufficient emphasis on human rights protection in the United Nations counter-terrorism acquis.

Similar assessments have been made in regional settings – as illustrated by the Report “The European Union’s Policies on Counter-Terrorism,” which was commissioned by the European Parliament. It diagnosed a gap between rhetorical commitments to rule of law and human rights, and the actual footprint of these values within the EU counter-terrorism policy space.

In parallel, the role of the UN Special Rapporteur on Human Rights and Counter-terrorism, which is the only UN entity specifically charged with promoting and protecting human rights while countering terrorism, is also highly tenuous in terms of support and capacity. While the Special Rapporteur on Counter-Terrorism and Human Rights (SRCT)  mandate can contribute to advancing human rights within the UN CT architecture, and via direct state engagement, each holder of this mandate, including the two of us (Fionnuala, the present office holder, and Martin as the first office holder), has stated clearly that the capacity to do so effectively or adequately is nearly impossible for a stand-alone entity operating with minimal Office of the High Commissioner for Human Rights staff, on a part-time basis, with few resources and with severely limited operational authority.

However, there is some good news. The establishment of a new Office of Counter-Terrorism may offer a route to a coordinated and centralized approach that puts human rights at the heart of effective counter-terrorism strategies. However, unless that office is fully and sufficiently staffed with human rights expertise and staff, there is less scope for optimism. A fundamental measurement of how deep commitments to human rights run in the Global Strategy will be to track the financial resources given to human rights and the rule of law. The budgetary gaps are extraordinary. So, without translation of the lofty goals of Pillar IV to practice, underpinned by consistent budgetary and personnel capacity, this will remain a pipe dream.

Follow through? When the commitments to human rights are articulated but are not implemented, what costs lie to governments in their breach? The link between breaches of human rights and rule of law as a cause, and the outcome of conditions conducive to terrorism strongly suggests that a failure to enforce the law including human rights undermines the security of all. This is fundamentally a long-term efficiency argument in fighting terrorism.

Incentives to comply? It is absolutely necessary to reward and recognize states when compliance with coordination, technical adherence, convention and rule enforcement is done in a human rights-complaint way. Reward in this space may be primarily rhetorical but it serves to give symbolic value to the hard and complex work at the national level of enforcing human rights.

Costs? When states fail and abuse human rights while countering terrorism, what should be done? A number of obvious options follow: 1) Naming and shaming is an obvious way to demonstrate state abuses of human rights in the name of countering terrorism. In practice, the challenge is that there is a decisive unwillingness by states to call out other states for systematic human rights violations associated with counter-terrorism enforcement. Without political will in this arena the reach of human rights advocacy and civil society influence will be limited. 2) Another option might include conditionality (for example in membership of organizations, such as the Financial Action Task Force): linking improvements in human rights standards to some benefits of institutional membership in certain global-counter-terrorism organizations. 3) Creating neutral benchmarks and assessments within the global counter-terrorism architecture itself that address states’ abuses, specifically on the basis that the long-term fight against terrorism is undermined by states who abuse rights under the pretext of counter-terrorism.

Human rights and counter-terrorism are mutually reinforcing and complementary. In practice, the promotion and protection of human rights has all too often been a mere afterthought to counter-terrorism regulation within the UN architecture. This revision of the Global Counter-Terrorism Strategy offers a meaningful (if highly contested) political space in which translation of lofty and abstract human rights values could be mainstreamed into global policies and practices. While human rights constitute an independent pillar of the GCTS, as well as a cross-cutting imperative in the other pillars of the strategy, the objective of mainstreaming human rights protection throughout the UN counter-terrorism architecture is a long way from being fulfilled. This review of the GCTS provides an important moment to address the prominence and support given to Pillar IV in the work of the relevant UN entities, and ensures that the commitments made to human rights protection under pillars I and III are fully translated in the practice of the architecture as a whole, and benchmarked for delivery and functionality.

 

Image: A wide view of the plenary meeting on the United Nations Global Counter-Terrorism Strategy. UN Photo/Rick Bajornas

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).

Martin Scheinin

Professor of Public International Law at the European University Institute, former United Nations Special Rapporteur on Human Rights and Counter-Terrorism (2005-2011). Follow him on Twitter (@MartinScheinin).