The Necessity of Enforcing Humanitarian Law and Human Rights in the Context of Counterterrorism

In my role as United Nations special rapporteur, I presented my Annual Report to the U.N. General Assembly two weeks ago. The report addresses the interface between human rights, international humanitarian law (IHL), and counterterrorism. It states the obvious: This is a challenging time for the protection of human rights. Even before the pandemic, human rights protection was particularly fraught in complex humanitarian settings and situations of armed conflict.

My report is particularly relevant to both contexts and was prompted by my concern about the apparent displacement of human rights and humanitarian law norms as a result of the wholesale application of counterterrorism law and practice. More broadly, I am troubled that well-established international legal norms, specifically those contained in the four Geneva Conventions and Additional Protocols, as well as other related norms, such as the right to self-determination, risk marginalization in the rush to embrace ill-defined counterterrorism standards in multiple settings.

The report set out the complimentary and mutually reinforcing values of human rights and humanitarian law and I steadfastly affirm that in complex humanitarian and armed conflict settings, human rights and humanitarian law provide the overarching international legal frameworks under which counterterrorism rules and standards apply. Counterterrorism operations/measures are undertaken in contexts of non-international armed conflict (NIAC) that involve non-State armed groups, including those subject to U.N. terrorist designation and targeted sanctions regimes. I, along with other observers, have been concerned that the interaction between IHL and countering-terrorism norms is leading to a troubled conflation of the two; a lack of understanding on the ground of the obligations demanded by IHL by many actors, including U.N. entities; and that the effect in practice has been to weaken human rights protections in fragile conflict and post-conflict settings.

I see a worrying securitizing trend that considers any act of violence, and many non-violent acts, as terrorism and, moreover, any act of violence by a non-State armed group in a NIAC as being “terrorist” by definition, sidestepping complex questions of lawfulness under IHL. Such practices have gone hand in hand with expansive militarism and security sector bloating, justified by counterterrorism discourses and U.N. Security Council regulation.

Human rights and humanitarian law have distinct points of divergence in both counterterrorism and armed conflict contexts. However, these bodies of law operate – whether sequentially or in tandem – to ensure the protection of individuals and to optimize the rights of individuals by specifying the duties of States (and non-State armed groups under IHL) in the most precarious and fraught of circumstances. For these reasons, the optimization of both bodies of law is critical to advance their separate spheres of effectiveness. Undermining one body of legal norms has significant consequences and implications for the effectiveness of the other. My report makes clear that the basis for the application of these legal regimes singly, sequentially, or in tandem, is not set by counterterrorism law and practice. Instead it is set by the treaty-based agreements and customary practice longstanding in application of international human rights law (IHRL) and IHL, respectively, as affirmed by the U.N. Charter, itself, and rooted in objective facts on the ground and not merely on the political preferences of States.

The report addresses a number of hot-button challenges to human rights and humanitarian law enforcement resulting from counterterrorism practice across the globe. I particularly stress the negative impact on accountability for serious violations of human rights and humanitarian law, which follows from the outright denial of IHL applicability by States in favor of counterterrorism rules and regulations particularly in the prosecution of genocide, crimes against humanity, and war crimes. This, in my view, has particularly functioned to produce inconsistencies in the identification and prosecution of war crimes, which is unacceptable given the need for prosecution and meaningful accountability for the victims of terrorism. It is not enough to be solicitous to the victims of terrorism, and then primarily prosecute persons for offenses related to travel and organizational membership, when the need for specific accountability for specific crimes is overwhelming.

I also examine at length the consequences for the provision of impartial humanitarian activities in armed conflict and fragile settings resulting from the application of broadly based domestic and international regulation on terrorism. I confirm that the consequences have been extensive and negative. Impartial humanitarian action — particularly the provision of medical supplies, shelter, and food — is essential in multiple parts of the world for the exercise of essential social and economic rights, including the right to food, safe drinking water, and adequate access to health. Designating certain non-State armed groups in NIACs as terrorists and linking the provision of humanitarian activities — protection and assistance – as a form of support to terrorism or to persons/entities designated as terrorist results in the lowering of fundamental human rights and humanitarian protections for the weakest and most vulnerable.

I also address practices of listing and sanctions requirements for known or suspected terrorists through watchlisting practices at the national, regional, and global level. My report confirms that listing and sanctions have both led to serious human rights deficiencies and are inconsistent with the minimal due process guarantees found in international law. I urged States to strengthen due process and procedural protections in their listings (as well as their delisting process of individuals), greater attention to the effects on families and women as a result of these processes. The recommendations made in my report respond to and echoes the deficiencies and challenges affirmed by previous and current Ombudsman.

I make many concrete recommendations to States and international entities including the U.N. They include the obvious obligation for States to implement their human rights and humanitarian law obligations as demanded by customary international law and human rights treaty law. I stress the importance of transparency and openness in the advice given by U.N. counterterrorism entities concerning human rights and humanitarian law obligations by States. Unlike human rights guidance to States through the treaty bodies and this mandate, counterterrorism assessments (assessing the compliance of states to the Security Council resolutions on terrorism) made by the Counter-Terrorism Committee through UNCTED remain opaque and secret, and we should therefore not be surprised at the suspicion and concerns about U.N. governance, transparency, and accountability in this realm.

I strongly recommend against U.N. counterterrorism bodies taking on the role of determining the status of armed conflicts, which, in my view, subverts the rightful role of States in the implementation of IHL treaties. Moreover, such a move might undermine the indispensable role and work of the International Committee on the Red Cross. Back-room deals that may function to deny the applicability of IHL to complex conflict contexts will undermine humanitarian principles and the human rights of the most vulnerable in conflict and post-conflict settings. I continue to prod U.N. counterterrorism entities to embrace and deliver on their rhetorical commitments to civil society, and specifically in respect of consistent, resourced, and adequate engagement with impartial humanitarian organizations. I continue to argue that U.N. Security Council resolutions on countering terrorism should exclude the activities of neutral, independent, and impartial humanitarian organizations from their scope, and to mitigate the harms of prior resolutions.

The report presses states to prosecute their nationals or persons within their effective control for serious violations of human rights and humanitarian law including war crimes, genocide, and crimes against humanity in trials that meet the requisite standards of fair trial, which is guaranteed under international human rights law. I urge States to address the human rights deficits of existing sanctions regimes and do better in terms of protecting the rule of law, the rights of due process, and the transparency of legal process. States on all of these issues, can and should do better.

Image: Members of the Iraqi Counter-Terrorism Forces stand guard as Iraqis flee the Old City of Mosul on July 3, 2017, during the ongoing offensive to retake the city from Islamic State (IS) group fighters. Photo credit should read AHMAD AL-RUBAYE/AFP via 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).