Keeping Human Rights and Counter-Terrorism in Focus at the UN

For several years, Egypt has been seeking to undermine longstanding consensus on norms for human rights in countering terrorism, in both Geneva and New York. Ben Saul chronicles well how this originated and spread in “United Nations Backslides on Human Rights in Counterterrorism (Lawfare, Oct. 16,  2019), Civil society organizations including those of the authors, ARTICLE 19 and the International Commission of Jurists, have worked to turn back Egypt’s destructive efforts, with occasional — albeit limited — success.

Some background: In March 2018 at the Human Rights Council in Geneva, two resolutions of separate lineage were merged: a resolution on “protecting human rights and fundamental freedoms while countering terrorism,” led by Mexico for many years with consensus support; and a resolution presented by Egypt since 2015, on “effects of terrorism on the enjoyment of human rights,” which was deeply divisive. Parallel resolutions at the General Assembly were also merged in December 2018. Both merged resolutions were adopted by consensus.

As Saul explains, the main effect of the merger has been to shift focus away from the Mexican-led resolution’s emphasis on human rights violations in the context of countering terrorism and the human rights of victims of terrorism, towards the Egyptian emphasis on impacts of terrorism on government finances and macro-economic conditions as well as a reaffirmation of states’ authority to impose counter-terrorism measures.

Egypt’s intentions in pursuing its strategy — to divert attention and resources from addressing human rights violations — seem clear. But why have other countries gone along with it?

We suggest two reasons. The first is that, at the time of the initial merger in Geneva in March 2018, Mexico and other states believed that “doing a deal” with Egypt could protect the mandate of the key monitoring mechanism, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. (Full disclosure: The current Special Rapporteur, Fionnuala Ní Aoláin, is an executive editor at Just Security.) While we believe subsequent developments demonstrate this strategy is not viable, states seem reluctant to admit that the celebrated diplomatic achievement of the merger in 2018 has in fact turned out to be a failure so soon.

Second, we fear that the UN “speaking with one voice” on this topic has come to be treated by many diplomats as an end in itself. In our view, member states are not giving adequate consideration to how seriously Egypt has already corrupted and censored what that “one voice” is actually saying.

At the current 74th session of the UN General Assembly Third Committee (one of six UNGA committees, it deals with social issues, humanitarian affairs and human rights), 20 organizations have called on member states to take a stand against the Egyptian initiative (joint letter, 24 October). Specifically, the organizations argue that states must not repeat the approach of 2018’s UNGA resolution 73/174 on “terrorism and human rights” (the “merger” of the two previously separate initiatives). Instead, civil society argues for a return to the approach and text of the previous, much stronger Mexico-led consensus UNGA resolution 72/180 (2017) on “protecting human rights and fundamental freedoms while countering terrorism.”

Resolution 72/180 was the culmination of 16 years of considered and consensus-based normative progress. Its focus (and since 2005, that of the Special Rapporteur’s mandate) on human rights while countering terrorism and human rights of victims of terrorism was not only important from a human rights perspective, but also bolstered the credibility and integrity of the fight against terrorism itself. It was the legacy of the principled and courageous leadership by Mexico in the challenging context immediately following the Sept. 11, 2001, attacks, and over the intervening years. That legacy is currently in the process of being erased.

Consensus-Based Commitments Removed

As Saul details, the costs of the 2018 mergers were significant. At the General Assembly, consensus-based commitments contained in prior Mexico-led resolutions were removed, including on, among other things, derogation (i.e. extraordinary limitation) of rights in emergencies, protections against being returned to risk of torture or other such abuse (non-refoulement), the right to privacy, deprivation of liberty, the rights of minorities and the rights of children, as well as reference to important international treaties, including the Geneva Conventions and the Convention Against Torture (mainly from OP4 and 5 of UNGA Res 72/180). Other language was watered down, and extensive language on the “negative effects of terrorism,” taken from the Egypt-led resolutions, was added. While much was lost, the merged UNGA resolution at least managed to retain more detailed human rights content than the merged Human Rights Council resolution earlier in the year; the slightly stronger UNGA text was the result of concerted advocacy from civil society and a small number of states insisting on the retention of crucial human rights language from OP5 of resolution 72/180.

Since 2016, civil society have been arguing that Egypt’s “effects of terrorism” initiative is a barely-concealed attempt to undermine the existing normative and institutional framework. While constantly invoking victims of terrorism, the Egyptian initiative does little to concretely recognize and fulfill their rights or respond to their needs. Instead, it aims to divert attention and resources to other issues such as the impacts of terrorism more generally on macro-economic conditions, government budgets, and foreign industry & investment, as well as duplicating text from elsewhere in the UN system prescribing particular counter-terrorism measures.

While these may be valid topics for the UN in other discussions or fora, civil society has been strongly of the view that the limited resources and attention within the UN allocated to human rights and terrorism should remain focused on human rights impacts of counter-terrorism measures, and on the human rights of victims of terrorism. We are especially concerned by the particular aim of the Egyptian efforts to dilute, distract and distort the work of the UN Special Rapporteur.

Throughout, Egypt has leveraged a constant threat of creating its own parallel special rapporteur mandate on the “effects of terrorism” if it does not get its way. At the March 2019 Human Rights Council, Mexico invited Egypt to join in leading the resolution on the renewal of the mandate of the Special Rapporteur, incorporating for the first time references to the Egyptian “effects of terrorism” concept, notwithstanding assurances in 2018 that the mandate would not be touched by the merger agreement. A concerted push from civil society opposing Egypt’s attempts to dilute, distort and distract the mandate contributed to Mexico and Egypt subsequently failing to find agreement on the precise text.

Mexico ultimately presented the mandate renewal alone, with a text that emphasized and endorsed that the mandate already covers human rights of victims of terrorism, while largely rebuffing Egyptian efforts to dilute the Rapporteur’s mandate by extending it to the Egyptian “effects” language. Egypt expressed dissatisfaction, making clear that its primary focus is not on victims or on human rights, and raised again the spectre of creating a competing Egyptian-led mandate.

The last separate Egyptian resolution in 2017 had tasked the Human Rights Council’s Advisory Committee to produce a report on “effects of terrorism.” The drafts prepared by one of the committee’s members, a former career Egyptian diplomat, however, were apparently still not deemed ready for presentation as of the committee’s July 2019 session, upsetting Egypt’s multi-pronged strategy. However, the report is now due to be presented before September 2020, and Egypt appears to be keeping all of its options open, even while negotiating “compromises” with Mexico and other states.

Another Shot at Rapporteur’s Mandate

Apparently frustrated by these experiences, Egypt sought again to impinge on the Rapporteur’s mandate in Geneva in September 2019 in the context of a further merged thematic resolution at the Human Rights Council, ahead of the normal expectation that it would not be presented again until March 2020. The outcome, HRC resolution 42/18 on “terrorism and human rights,” following on from the merged HRC text the year before, gave further prominence to the “effects” agenda, and failed even to integrate human rights language that had been retained in the merged December 2018 UNGA resolution (73/174). Worse still, it included language “inviting” the Special Rapporteur to ”pay attention to” and make recommendations on the “negative effects” of terrorism, essentially allowing Egypt to direct, dilute and distract the mandate’s work in a way that had been rejected during negotiations of the mandate renewal six months earlier.

These concessions were made notwithstanding the Special Rapporteur having previously explicitly raised in her report to the Council her concerns that the “effects of terrorism” initiative has a history of “instrumentalising the victims of terrorism in order to bolster the need for greater counter-terrorism measures and thus weaken the international system as a whole.” HRC Resolution 42/18 essentially did the opposite of the Special Rapporteur’s call on states to address the deficits of this merger and restore key human rights aspects from the resolutions previously led by Mexico.

As civil society observers, the rapid and escalating concessions to Egypt has been alarming to watch. We would, of course, oppose creation of a competing, redundant and counter-productive “effects of terrorism” mandate. But compromising the integrity and focus of the existing Special Rapporteur mandate, as seems the current direction of travel, is absolutely not a price states should be willing to pay to appease Egypt. The strategy of containment is therefore not only failing, but having the opposite effect of its stated purposes, as states gradually acquiesce in undermining the very standards and mechanisms they apparently sought to protect by doing a deal with Egypt.

UN Role Gives Cover to Egypt Violations

Egypt’s initiatives at the UN must also be understood in the context of its egregious and continuing abuse of counter-terrorism measures at home to suppress civil society and dissenting voices. In a statement on Oct. 18, the UN High Commissioner for Human Rights raised concerns at the detention and mistreatment of human rights defenders Esraa Abdelfattah, Mohammed El-Baqer, and Alaa Abdel Fattah, accused of “terrorism” solely for the exercise of their rights to peaceful protest and freedom of expression. Their cases are emblematic of Egypt’s frequent abuse of counter-terrorism charges and measures against human rights defenders, lawyers, journalists, peaceful protesters and political opponents, free media, including online, civil society, and others, including through the kinds of human rights violations Egypt has sought to remove from counter-terrorism resolutions. The UN Secretary General’s 2019 report on cooperation with the UN system contains numerous allegations that the Egyptian government abused its counter-terrorism laws to engage in reprisals. Similar emphasis on Egyptian abuse of counter-terrorism measures against human rights defenders and protesters was given in a Oct. 29 joint statement by special procedures, as well as a Oct. 24 resolution of the European Parliament.

For states to treat Egypt as a reliable partner by allowing it joint leadership on the UN resolutions on human rights and terrorism only helps to provide cover for and perpetuate this egregious pattern, with serious consequences for the lives and dignity of Egyptians seeking to exercise their fundamental rights.

Not Too Late to Restore Human Rights Focus

The 74th session of the UN General Assembly Third Committee is an important opportunity for states to not only end their misguided acquiescence in Egyptian efforts to undermine UN work on terrorism and human rights, but also to restore the long legacy of Mexican leadership on the resolutions. In addition to the reasons identified in Saul’s Lawfare piece (which we won’t repeat here), several factors make this particular General Assembly resolution potentially an even more impactful moment.

First, the resolution adopted this autumn will likely directly inform the biennial Global Counter Terrorism Strategy (GCTS) review in July 2020. Those review resolutions already contain only limited human rights substance, notwithstanding human rights being the fourth pillar of the strategy. However, they do call for the implementation of resolutions on “the protection of human rights and fundamental freedoms while countering terrorism,” the last in that chain being resolution A/72/180. Any resolution at UNGA Third Committee this autumn will set the stage for the 2020 review, and send an important signal on the position of human rights within the global counter-terrorism architecture. States should consider carefully the implications of adopting a resolution that is any weaker on rights than resolution A/72/180.

Second, following Egypt’s attempts in Geneva to distort, distract, or dilute the mandate of the Special Rapporteur on the protection and promotion of human rights while countering terrorism, the General Assembly should show its full support to the mandate and her work. This is particularly important considering the unique position the mandate occupies as the sole entity, within a rapidly expanding UN counter-terrorism architecture, that is dedicated exclusively to ensuring counter-terrorism measures and the treatment of victims of terrorism are consistent with the protection and promotion of human rights. Explicitly endorsing in the resolution, for instance, the recommendations of the Special Rapporteur’s March report on the abuse of counter-terrorism laws to limit civic space would focus minds on an important global priority ahead of the GCTS review.

In this moment, member states should recognize that a continuation of a Mexico-Egypt merged resolution on “terrorism and human rights” holds no promise of positive results for human rights. Now is the time for UN members to turn the tables and take a principled and strategic position: if Egypt will not agree to restoring key normative provisions previously lost, vigorously reinforcing rather than eroding support for the existing focus of the Special Rapporteur mandate, and laying the appropriate groundwork for a strong GCTS review in 2020, then states should insist that the merger be brought to an end and go back to the consensus text of resolution A/72/180.

IMAGE: Prominent Egyptian activist Alaa Abdel Fattah (L) stands behind bars with fellow defendants as they are tried at a court in Cairo on August 6, 2014. Abdel Fattah and 24 other defendants are accused of illegally holding a protest and of assaulting a police officer during a demonstration outside the Shura council the previous November in objection to the military trials of civilians. (Photo gy MOHAMED EL-SHAHED/AFP via Getty Images)

 

About the Author(s)

Andrew Smith

Head of UN Advocacy at ARTICLE 19. Follow him on Twitter (@moodrewsmith)

Matt Pollard

Senior Legal Adviser & UN Representative for the International Commission of Jurists (ICJ) in Geneva. Follow him on Twitter (@mattdpollard).