Negotiating a Global Counter-Terrorism Strategy in a Time of COVID-19

Despite the challenges posed by COVID-19, and the resulting retreat from public meetings, large gatherings, and office work, States are currently engaged in the 7th biannual review of the Global Counter-Terrorism Strategy. A global counter-terrorism strategy was first adopted by the U.N. General Assembly Resolution 61/288 in September 2006. The resolution describes the strategy as:

a unique global instrument to enhance national, regional and international efforts to counter terrorism. Through its adoption by consensus in 2006, all UN Member States agreed the first time to a common strategic and operational approach to fighting terrorism.

The strategy contains four pillars: Pillar 1) addresses the conditions conducive to terrorism; Pillar 2) measures to prevent and combat terrorism; Pillar 3) measures to build capacity and prevent terrorism; and Pillar 4) measures to ensure respect for human rights and the rule of law. In theory all of these pillars are equally weighted and each are sufficiently and equally resourced. In practice, the human rights and rule of law pillar is weak, profoundly under-resourced, and lacks the kind of institutional capacity to deliver its objectives within the global counter-terrorism architecture (an issue I addressed here during the 6th review of the Global Counter-Terrorism Strategy in 2018).

Since 2018, little has changed fundamentally for the protection of human rights in counter-terrorism. Instead, counter-terrorism architecture has expanded, particularly the spectacular growth and consolidation of the U.N Office of Counter-Terrorism and parallel human rights institutional capacity has not been a priority for States or the U.N. entities. This is despite the obvious reality that the expansion of policing and the military approach to countering terrorism profoundly impacts human rights, and as I have argued elsewhere, the sustained weakening and abuse of rights in the name of counter-terrorism is a demonstrated condition conducive to the ongoing growth of terrorist violence in multiple countries.

This year’s strategy review is led by two States. In this review cycle, Egypt and Spain are the two co-facilitators of the negotiation process. These States have a very different positioning on many of the strategy’s core issues, and Egypt, in particular, has been the subject of sustained criticism, including by this Special Rapporteur, for its sustained targeting of human rights defenders and civil society under the banner of regulating “terrorism.”

The range of challenges to effectively negotiate this strategy while the COVID-19 virus rages across the globe are obvious. There will be fewer meaningful opportunities for States to engage one another directly and to engage in the hard (and direct) bargaining that is needed to iron out differences. Moreover, the capacity for civil society, humanitarians, and experts to engage with States will be extremely limited to make the case for strengthening and making the 4th pillar capable of being an equal partner in a global strategy. Moreover, if States seek to use civil society to do the work on the ground to prevent terrorism, their meaningful participation in global policy setting on countering terrorism is long overdue.

As a start, I make the following suggestions to strengthen the 4th pillar:

  1. Establishing an independent, adequately funded and sufficiently empowered human rights oversight office within the Global Coordination Compact (for example, an Independent Reviewer office) utilizing best practice models of independent reviewers of terrorism at national level. The goal would be to have a full-time, fully staffed and adequately supported independent entity capable of consistently advancing compliance with and oversight of international law and human rights obligations in the counter-terrorism and countering violent extremism arenas by U.N. entities. This entity should be empowered to give cross-cutting guidance to States on counter-terrorism law and policy with human rights implications;
  2. Strengthen existing human rights language within the strategy by making clear and concrete obligations to the protection and promotion of human rights across all four pillars of the strategy. Particularly urgently needed in this strategy is stronger language disavowing the abuse of counter-terrorism law and practice, human rights language on privacy, new technologies, systemic patterns of human rights violations while countering terrorism, adequately recognizing the human rights and remedies due to victims of terrorism, humanitarian exemptions, human rights complaint financing, human rights compliant sanctions measures, and a clear and specific set of protections to civil society on the ground as well as their inclusion within the U.N. Architecture in meaningful ways.
  3. Strengthen human rights capacity (bodies and budgets) to address terrorism, counter-terrorism, and human rights issues across relevant U.N. entities, particularly the need to strengthen the presence of the office of the U.N. High Commissioner for Human Rights in New York to enable systematic human rights assessment of all U.N. counter-terrorism projects at time of conceptualization, staffing, implementation and review;
  4. Establish a transparent, effective and well-resourced civil society liaison/focal point office within the Office of Counter-Terrorism in a reasonable time-frame;
  5. Ensure consistent application of the human rights due diligence policy (HRDDP) requirements in the delivery of counter-terrorism capacity building by UN entities.

There is a clear lack of political will to implement the 4th pillar’s requirements and logic to meaningfully protect and promote human rights. There is an urgent need to develop new and innovative pathways for the implementation of human rights in global counter-terrorism practice. We are well beyond the time for rhetoric on the value of human rights and cursory references to human rights in national and global counter-terrorism approaches.  The absence of meaningful capacity and resources to embed human rights in the practice of counter-terrorism is the problem that this global counter-terrorism strategy needs to remedy.  That remedy will only follow if states are prepared to make meaningful commitments to institutionalizing human rights oversight and capacity.  This is the time where States who define themselves as friends and supporters of human rights and civil society must do more than offer platitudes of virtue but rather support their positions with resources and practical commitments.

In short, a new language and political will is necessary to reimagine the integration of rights and security for the 21st century. In parallel to the evident lacunae in implementing the 4th pillar, there is a congruent need to ensure that human rights are concretely addressed across all four pillars of the strategy. This means strengthening the language of human rights in the governing General Assembly Resolution, augmenting human rights expertise and capacity within the U.N.’s Counter-Terrorism Architecture to support human rights, providing funding for the implementation of human rights supported projects and mandating oversight and benchmarking of counter-terrorism work through a human rights framework.

To deliver all of this in the regular negotiation season would be difficult. To do so under the negotiation constraints imposed by COVID-19 may be impossible. Nonetheless, it is important that COVID-19 does not completely distract States, experts, and civil society from the daily work being advanced in multiple policy spaces. If anything, we need to be reminded us of the need to be vigilant and to remain attuned to these negotiations, even from afar. Given the restraints imposed on governments and diplomats at this time,  there may in fact be a need to pause these important negotiations, seek a technical roll-over of the existing (imperfect) resolution so as to allow all States and civil society the capacity to engage fully and meaningfully on the substance of a policy that had global effects and whose import is felt at the national level.  An imperfect strategy produced in sub-optimal conditions will struggle to provide the much needed guidance and global recalibration needed on the challenge of countering terrorism in a rule of law and human rights compliant way.  The moment for pause may be now.

Image: The U.N. General Assembly adopted a resolution on the United Nations Global Counter‑Terrorism Strategy Review by consensus. June 26, 2018. UN Photo/Loey Felipe

 

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 Queens University in Belfast, Northern Ireland. Member of the editorial board of Just Security. You can follow her on Twitter (@NiAolainF).