This week, as U.N. Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, I submitted my annual report to the U.N. General Assembly. In the report, I highlighted my deep concerns about how terrorism is being regulated globally, including democratic, transparency and accountability deficits. I particularly chart the rise of a new form of “super legislative” Security Council resolution being deployed in the counterterrorism arena, which has sizable sovereignty and rule of law consequences. I also make a number of recommendations to address the deficits and challenges such new forms of global counterterrorism regulations have for States and individuals.
I do not contest that the Security Council rightly has an undisputed responsibility in the arbitration and maintenance of global peace and security. I recall that under Article 24 (1), of the United Nations Charter, the Security Council is given the “primary responsibility for the maintenance of international peace and security.” In parallel, under Article 10 of the Charter, the General Assembly has express competence to make recommendations to the Council and Member States on “any questions or any matters” within the scope of the Charter,” affirming its separate competence in peace and security matters. The Charter also expressly recognizes human rights as foundational to its purposes and principles. It is these purposes and principles, and specifically their application in practice, that concern me.
My report charts a distinct and particular shift in Security Council regulation in the decade following 9/11. There is a clear move away from treaty-making as the dominant mode of legal regulation in the counterterrorism space. This shift is important not least because forum changes and form changes have reshaped the capacity of many States to craft the content of global security regulation, and have created a virtually exclusive role for the Security Council in this space. As a result, we see assertive and broadly crafted regulatory Security Council resolutions having a primary role in shaping the legal obligations of all States in respect to countering terrorism and violent extremism. There are real consequences in that shift for human rights and humanitarian law observance.
These shifts have had, in my opinion, a distinctly negative effect on the overall advancement of meaningful protection for human rights and humanitarian law. I have grave concerns that the well-entrenched constitutional and domestic protections for human rights embedded in national legal systems in many countries are being rendered irrelevant or powerless in this new regulatory landscape. Taking a macro view of Security Council resolutions, it is clear that they have broadly urged, and sometimes required, States to implement inter alia sanctions regimes and counterterrorism measures at the expense of the protection of fundamental rights and liberties.
Specifically, since the tragic and devastating Sept. 11, 2001, terrorist attacks, the Security Council has issued sweeping and important statements of principle on the prevention of terrorism: They are clear, at least in their rhetorical sense, and undeniably enhance the duty of States to prevent and repress terrorism. But, I caution in this report that such broad law-making has the capacity to impinge on the legitimate sovereignty of States; may override national constitutional and legislative protections for human rights; and may operate to exclude broad and sustained debate among States, citizens and civil society concerning ways to co-safeguard human rights and security in the context of terrorism. The resolutions adopted by the Security Council are characterized by a number of common elements, including: significant speed in the drafting, debate and agreement of resolutions; a lack of engagement with civil society actors in the determination of legal, political, social and cultural effects of such resolutions; a lack of benchmarking of, or accountability for, human rights and humanitarian law violations that may follow from implementation; and lack of attention to the disproportionately detrimental enjoyment of specific human rights triggered by targeted forms of terrorism regulation.
Let me specify some of my concerns beyond the generic. I frame these observations by (re) stating the centrality of human rights to the work of the United Nations and all of its subsidiary bodies, noting in particular the language of Article 1 and Article 55 of the U.N. Charter. I stress that principles of respect and observance of human rights are not merely outward-facing obligations but also inward-facing: They guide the actions of all of the institutions and entities created and regulated by the Charter in the discharge of their powers.
In this context, how are we to understand the place of human rights in the counterterrorism regulation of the United Nations? U.N. Security Council Resolution 1373, adopted on Sept. 28, 2001, required States to criminalize a significant number of activities, and many were areas where the gap in regulation (e.g. terrorist financing) was made clear by the events of 9/11. Numerous similar resolutions followed, but it wasn’t until Resolution 1624 (adopted in 2005), that you saw for the first time, in an operative paragraph of a counterterrorism resolution, States being mandated to comply with their international human rights and international law obligations. Pointing out the obvious, all of the resolutions in the interim period of four years (including Resolutions 1368, 1373, 1267 and 1390) had significant regulatory consequences for the protection of human rights. But, in all of these Security Council resolutions, not only was human rights terminology missing, so too was any structured and institutional anchor for human rights in the architecture created and sustained by these resolutions. While some early deficits have been addressed, the human rights gaps that persist are profound.
I remain deeply concerned about expedited and non-transparent processes. When combined with a legislative compulsion that increasingly regulates criminal conduct, the implications for human rights and the rule of law are sizeable. I highlight that expedited policy processes have significant implications for public scrutiny, debate and input from relevant actors, including non- Security Council Member States and civil society.
For example, as my report highlights, resolutions such as 2178, which includes many provisions that are overbroad and vague, including terms such as ‘terrorist act’ that are unconnected to any specific definition or description of prohibited conduct, may create broadly defined criminal offenses that fail to satisfy the principle of legality. Recent resolutions have moved squarely to require criminal law regulation, with often tenuous links between ancillary and inchoate offenses and principal offenses associated with acts of terrorism. I express very particular concerns about the human rights implications of the obligation articulated in paragraphs 11-15 of Resolution 2396 to set up watch lists, develop biometric databases and API systems (Advanced Passenger Information), or to develop PNR (Passanger name record systems) capacity. These regulatory moves have momentous consequences for the regulation of conduct, and expressly infringes on the due process rights of persons in countries implementing Security Council resolutions as mandated by the Charter. I note that meaningful consultation with criminal law and human rights experts across different legal systems, including those within the United Nations system, during the drafting and negotiation stage would reveal and potentially ameliorate these regulatory consequences. The speed and closed nature of the drafting process for Security Council counterterrorism resolutions make such inputs currently unlikely.
As for recommendations, I make a number of them in this report. I note that the move to generically recognize obligations to comply with international law, including international humanitarian law, human rights law and refugee law, in the text of Security Council resolutions is a distinct improvement, but it is not sufficient to meaningfully protect human rights in practice. The actual impact of generic mentions of human rights, without clear and explicit human rights guidance contained in the same text, is minimal to non-existent. Given the scope of regulatory requirements in many resolutions, including the gathering pace of criminal mandates, the generic invocation of human rights rings as hollow and artificial. So, bottom line, generic references do not do the necessary work to protect and promote human rights in Security Council resolutions and far more is needed. If we can provide specificity on the regulatory counterterrorism obligations of States without difficulty, there is no inherent drafting or legal challenge in crafting equivalent human rights language.
I strongly recommend that international practice by supranational bodies addressing terrorism, including the Security Council, must not impinge on the protection of rights contained within national constitutions and procedures, and must themselves be human rights-compliant as required by the U.N. Charter. It is fundamentally unacceptable to be tone-deaf to domestic human rights protections and procedures. Equally, it seems fundamentally distorting when States selectively rely on international obligations as a rationale to circumvent domestic legal requirements protecting the rule of law and the separation of powers. I also reaffirm, as my predecessors have done, the abiding need for an agreed definition of terrorism.
Particularly because I presented my report to the General Assembly, I amplified the consequences of ‘fast-track’ resolutions of legislative character. I propose that where such resolutions are adopted for reasons of compelling necessity and security, the human rights implications must be benchmarked in an agreed ex ante rights-impact analysis. I take the view that when general, binding rules are being deliberated, all States should be considered as affected States in the sense of Article 31 of the U.N. Charter.
In parallel, I encourage States to consider a form of a priori human rights review for Security Council resolutions in the counterterrorism domain that have a quasi-legislative character, and mandate criminal law regulation at the domestic level. The procedural capacity of the Security Council to set its own terms of regulation is considerable. This capacity means that is absolutely possible for the Security Council to establish tightened processes of review when such “super-legislative” resolutions are under consideration. Such processes might assuage fears of over-reach, lack of accountability, as well as enable the effects of these enormously consequential resolutions to be more obvious to all States.
The shift in counterterrorism regulation and process has gone largely unremarked by policymakers and scholars. As Special Rapporteur, I urge us all to pay more attention to how counterterrorism regulation is being produced at the global level. If we demand accountability, fairness, transparency and balance at the domestic level for these exceptional norms, we should expect no less from our international institutions.
Image: U.N. Security Council meeting on the situation in Syria on Oct. 17, 2018. UN Photo/Eskinder Debebe