Under Cover of COVID at the UN: Why Counterterrorism Is Not the Answer to a Pandemic

(Editor’s Note: In case you missed it, for more on the U.N.’s Virtual Counter-Terrorism Week, Yasmine Ahmed discusses the failure to involve civil society, and Eric Rosand and Alistair Millar explore the outsized role of Saudi Arabia and Qatar.)

This week’s first-ever ”Virtual Counter-Terrorism Week” (CT Week) at the United Nations is framed as revolving around the pandemic. Issues include “multilateral collaboration” between U.N. counterterrorism structures and those responding to the coronavirus, leveraging “existing multilateral (counterterrorism) platforms” to address the crisis, “human security and the threat of bioterrorism in the COVID-19 environment,” and assessing “where … public health and security systems meet.” Yet nowhere on the agenda is there discussion of the misuse and appropriation of the coronavirus to suppress rights, to leverage greater executive power, to limit democratic and independent oversight, and to engage the coercive power of the police and security sector.

Certainly the threat of terrorism persists, notwithstanding the existence of the global pandemic. Global institutions with a responsibility for supporting States in managing genuine terrorist threats have designated obligations to assess, brief, and offer advice on how best to leverage the multilateral system to protect and advance national and human security. For example, the U.N. Counter-Terrorism Committee Executive Directorate (UNCTED) and the Security Council’s 1267 committee that oversees sanctions related to ISIS and al-Qaeda have issued preliminary assessments of such threats, and they have acknowledged the methodological challenges in gauging security and measuring the differential impacts of terrorism across States and regions.

But in all such assessments, U.N. counterterrorism entities assume that member States view the concept of terrorism similarly and address it equally, based on the rule of law. In reality, as the mandate I hold and other U.N. human rights entities have persistently articulated, national-level regulation of terrorism is often broad and vague.  The result is long-term — and now entrenched — proliferation of excessive counterterrorism laws and sanctions frameworks that have strangled the capacity of civil society — and increasingly humanitarian organization — to operate.

In multiple States, terrorism functions as a convenient fig leaf for the legal and political management of dissenters, political opposition, civil society actors, humanitarians, inconvenient minorities, and human rights defenders.  Allowing States to define terrorism exclusively on their own terms encourages the proliferation of national legislation that, for example, includes acts protected by international law such as speech and assembly as terrorism or security threats. That is now exacerbated and accelerated by the use of the pandemic as a basis for new security legislation in multiple states. In essence, we face an epidemic of exceptional law and practice under the cover of the coronavirus.

Yet, during the U.N.’s CT Week, the single session on human rights focuses on the value of human rights in promoting ‘resilience against terrorism,’ without mentioning the elephant in the room: the now-routine abuse of human rights in the name of countering terrorism and extremism.

The Viral Spread of Emergency Legislation

The COVID-19 Freedom Tracker, developed by the International Center for Not-For-Profit Law (ICNL) and European Center for Not-for-Profit Law (ECNL) and supported by my mandate, monitors the deployment of emergency powers across the globe. The tracker shows us that 88 countries have formally issued emergency declarations since the beginning of the pandemic, 41 countries have adopted measures that affect freedom of expression, 118 countries have measures impacting assembly, and 41 countries have measures affecting privacy.

This is only one measurement of the legal exceptionality through the widespread use of emergency powers emerging under cover of the coronavirus, as it does not measure informal or de facto states of emergency, pre-existing counterterrorism legislation being de facto reworked and adapted for security responses to the pandemic, nor the widespread use of executive powers and administrative law, including at multiple levels in federal systems of government. As the Just Security series on emergency laws during the pandemic has illustrated at the national level (e.g. Hungary, Brazil, Poland, UK, and Nigeria)  many of the formal measures taken are, in practice, overbroad and reach beyond the health emergency at hand.

It appears that the specter of COVID-19 is functioning as a means for speeding up the passage of pending counterterrorism legislation, including in countries as diverse as the Philippines, France, Cambodia, Kyrgyzstan, and China. In this context, simply adding one designed session on human rights to the mixture of counterterrorism week is a rather limited response to a more profound structural problem. I have already issued an early warning on the misuse of counterterrorism, security, and emergency measures in the context of the coronavirus around the globe. Given the scale, pace, and quantity of exceptional  security, counterterrorism, and emergency law being produced by States, the lack of any critical reflection within the U.N. counterterrorism system, including but not limited to the agenda of virtual CT week, seems remarkably short-sighted or an indication of a profoundly problematic direction of travel.

Fundamentally, offering the global counterterrorism architecture as a solution and/or key partner in responding to the pandemic is highly problematic. I caution unreservedly about the flirtation with that connection. Counterterrorism practice around the world is grossly deficient on human rights, lacks oversight and independent monitoring in most states, and may contribute to the very conditions producing violence by systemically violating the most fundamental rights in the guise of countering terrorism and extremism.

Compounding Distrust and Abuse

Moreover, the policing of adherence to pandemic-related regulations has exacerbated discriminatory patterns of abuse in the use of force. Epidemiological evidence across a number of States reveals that COVID-19 is causing disproportionate deaths among minorities or other historically vulnerable groups. Consider then the prospect that the tools of the surveillance state and the use-of-force capacity of government would be further mobilized against those communities, who already distrust law enforcement and other security forces and have long histories of harm at their hands.

The positive human rights outcomes from the coronavirus pandemic might include an emerging consensus on the right to health and the right to adequate housing as fundamental. It might also include a recognition that the right to information could prevent the spread of disease across the planet. The security sector certainly is in no position to play that role of safeguarding global health or managing complex health needs and challenges of diverse populations, given the limited oversight and even less transparency compared with other institutions.

There are a range of other actors better placed to safeguard the right to health, the right to a home, the right to water, and the right to challenge government information about health risks. Considering the demonstrated human rights and civil society failings of the U.N. counterterrorism structures, not to mention those of other groupings aiming to counter terrorism, they have significant issues to be corrected and trust to be built in the work they already do.

IMAGE: Protesters wearing masks hold up placards as they protest an anti-terror bill outside the Philippine Congress, despite a ban on public gatherings due to the coronavirus outbreak, on June 3, 2020 in Quezon city, Metro Manila. Philippine President Rodrigo Duterte was trying to expedite the passage of a new anti-terrorism law, which rights groups warn contain draconian provisions that could be used to target his critics. Among the most contentious provisions include the warrantless arrest and 14-day detentions of suspected “terrorists”, and the creation of an anti-terror council that would determine what is terrorism and order arrests without a warrant – a function usually reserved for the courts. (Photo by Ezra Acayan/Getty Images)

 

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).