The use of global and national counterterrorism lists, or watchlisting, has become the tool of choice for states. In parallel, human rights and rule of law concerns about the operation and practices of establishing and maintaining such lists have been significant and growing. There is an urgent need to regulate this legal and political practice and the pernicious human rights consequences it has in multiple countries.
As previously documented at Just Security, in October 2021, through a process co-led by the United States and the United Nations (U.N.) Office of Counter-Terrorism and the Counter-Terrorism Executive Directorate, the Global Counter-Terrorism Forum (GCTF) released its Counterterrorism Watchlisting Toolkit, which purports to “provide good practices or possible options for states in their efforts to establish, implement, and maintain integrated counterterrorism national-level watchlists.” The Toolkit was affirmed last month in the preamble of U.N. Security Council resolution 2617, the mandate renewal resolution of the United Nations Counter-Terrorism Executive Directorate.
The Toolkit serves as a stark reminder that counterterrorism watchlisting practices may continue to erode the fundamental principles of due process, human rights, and rule of law around the world. This concern is particularly acute with respect to the role of the United States in pressing the adoption of the Toolkit and the export of its own watchlisting model, thus disseminating its flawed use to other states. We have deep concerns about this Toolkit, including its lack of human rights mainstreaming, as well as the way in which it undermines certain non-negotiable rights in the rush to support watchlisting globally.
Perhaps most troubling is the politically savvy use and appropriation of international human rights law rhetoric without any reform, guidance, or limits to back it up. Given the many references to human rights throughout the Toolkit, it may be hard at first to identify what ultimately becomes a glaring gap: the failure to integrate well-settled international law norms offers an off-ramp to states seeking to sidestep their international human rights, humanitarian, and refugee law obligations.
The Toolkit accomplishes this by starting with the fallacy that “there has been limited consideration to date of the specific challenges that implementing watchlisting systems may pose with respect to international human rights law.” This statement is simply not true and undermines decades of analyses by human rights advocates, lawyers, scholars, and courts documenting the ineffective, rights violative, and discriminatory nature of most existing watchlisting systems.
The Toolkit goes on to stipulate that States “may need to take into account…the rights of members of protected groups, the right to freedom from arbitrary or unlawful interference with privacy, data protection, and legal and procedural safeguards, including oversight and access to an effective remedy.” This framing fails to recognize states’ binding legal obligations to do so under international law.
At most, the Toolkit recognizes in formulaic and decorative text that watchlisting measures must “comply with” or be implemented “in accordance with” state “obligations under international law, including international human rights law, international refugee law, and international humanitarian law.” But read line-by-line, the document lacks specificity about the precise legal parameters and obligations of states under international law frameworks applicable to the technical aspects of watchlisting, such as nomination criteria, remedies and redress for improper listing, interoperability and international sharing of watchlist data, and more. Passing reference to treaties like the International Covenant on Civil and Political Rights (ICCPR) as “relevant resources” is plainly insufficient and a far cry from “providing guidelines for integrating human rights safeguards into the design and operation of national watchlisting systems” as the Toolkit purports. The chimera of human rights hides a deeper attack on acutely needed human rights mainstreaming in watchlisting practices.
While a full human rights audit of the Toolkit is beyond the scope of this piece, the following categories emerge as fundamentally problematic: (1) the rights protective principles of legality, necessity, and proportionality; (2) the principle of non-refoulement; (3) the rights of the child; (4) the rights of women and girls; and (5) the right to an effective remedy.
Legality, Necessity & Proportionality
In the world of counterterrorism, where national security carveouts to the law reign, among the most important rights protective principles are those of legality, necessity, and proportionality. These principles translated into action mean that there has to be precision in the legal basis and norms that allow persons to be placed and kept on watchlists. The principles, which are alluded to in the Toolkit via inaccurate references to relevant Human Rights Committee General Comments as “UN resources,” rather than treaty body guidance, are among the foremost obligations of states undertaking limitations to rights. And in the case of watchlisting, the rights to freedom of movement, freedom of opinion and expression, and the right to privacy remain the most primary rights interfered with, restricted, or entirely denied. The Toolkit simply pretends that this is not the case, and that the practice of watchlisting is not related to real-life, concrete, and sustained violations of human rights in multiple countries.
As the U.N. Human Rights Committee notes in General Comment No. 27 on freedom of movement and General Comment No. 34 on freedoms of opinion and expression, measures restricting protected rights “must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality.” In other words, restrictions “must be ‘necessary’ for a legitimate purpose” and “must be the least intrusive instrument amongst those which might achieve their protective function.” These objective criteria are provided for by the ICCPR and have been applied in constitutional courts around the world, in both common law and civil law systems. The European Court of Human Rights and the Inter-American Commission on Human Rights both rely on necessity and proportionality tests for a range of rights as “necessary in a democratic society.” And while the Toolkit suggests that a state must identify and obtain a legal basis through Recommendation 1, it fails to grapple with the lack of legal certainty pervasive in watchlisting, the lack of “appropriately narrow” nomination criteria, where “little more than a hunch” can result in an individual being watchlisted.
On the right to privacy, there too remains zero substantive engagement with the human rights law frameworks applicable to the right to privacy and data protection standards, including with respect to the scope of privacy rights affected. The Toolkit would have done well to articulate above the line (not just in resource references), the precise human rights obligations and parameters that should guide an administrator’s duties and obligations, as well as data retention policy and practice. As it stands, the document conflicts with a range of U.N. documents and international jurisprudence on the matter. The danger is that states will take this document as a signal from the Global Counter-Terrorism Forum and the states who comprise it that their human rights obligations are optional or that there are ways to avoid them by complying with GCTF soft law guidance.
Despite several references to international refugee law throughout the document, the Toolkit remains stripped of all language on the well-settled principle of non-refoulement, pursuant to which an individual may not be expelled or otherwise removed if there are reasonable grounds to believe that their removal will expose them to a real risk of torture or other cruel, inhuman, or degrading treatment. This principle is stipulated in article 33 of the Convention Relating to the Status of Refugees, an instrument that is only referenced in passing in the Toolkit’s annex of resources. Many would be shocked to see a document like this emerge which appears to nod to ignoring non-refoulement principles. Again, the danger here is that bodies like the Global Counter-Terrorism Forum made up of a self-selected group of States function to undermine international law protections by stealth and subterfuge.
Rights of the Child
The issue of children’s inclusion or mistaken inclusion (many will remember the example of Mikey the Cub Scout in 2010) in terrorism watchlists has arisen several times since 9/11. The Convention on the Rights of Child obliges states to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members. Yet, the Toolkit offers sparse guidance, referencing U.N. documents on children and foreign terrorist fighters that in turn outline the misuse of watchlists and “failure to ensure an effective regulatory framework and oversight of collection and exchange of data is contrary to the principle of best interests of the child.”
The Toolkit avoids any concrete guidance and suggests that states should “be sensitive” to the implications of watchlisting children and “take into account” the best interests of the child and the “effects watchlisting can have on children” – citing a U.N. Office of Counter-Terrorism guidance and notably, omitting reference to the Convention on the Rights of the Child. Indeed, the Convention is only referenced later in the document in the lists of relevant resources. This opaque framing in the overview section is deeply worrying as international human rights law demands that state actions should be fundamentally based upon the best interests of the child and non-discrimination principles, as well as the rights of the child, as enshrined in the Convention on the Rights of the Child. When children are in danger of being placed and kept on watchlists, some for the entirety of their lives, hiding the obligations of states in document resources is a form of negative signaling about child rights that deeply concerns us.
Instead, if a best interest of the child test were properly undertaken, the necessary conclusion is that the inclusion of children (persons under 18) in any listing process is in fact not in the best interest of the child and more often than not, constitutes discrimination or punishment on the basis of the status of parents or family members.
Rights of Women and Girls
The Toolkit lacks adequately specific guidance on what the Global Counter-Terrorism Forum and the United Nations continue to rhetorically espouse as a priority in counter-terrorism: mainstreaming of gender and women’s human rights. The limited guidance that “states should be mindful of the impact that watchlisting can have on gender and should base watchlisting decisions on credible derogatory information articulating terrorist activity, and not on a protected basis” fails to capture the fundamental, positive obligations of states under the ICCPR, the Convention on the Elimination of All Forms of Discrimination, and international human rights law. And here again, women and girls are not afforded concrete protections under the law, but rather ‘mindfulness’ and vague aspirations to protection.
Right to an Effective Remedy
As was aptly observed by previous commentators on this platform about the Toolkit, remedial measures or processes offered by a range of terrorism watchlists consistently fail to provide any individual on the watchlist with an effective remedy. The Toolkit makes regular use of the term “encounter,” which has no clear legal and agreed international legal standing and lacks legal certainty. The glossary definition is insufficient and is not a useful parameter for when state authorities should and should not be interacting with a watchlisted individual. As it stands, the provision is vague and gives leeway to significant abuse.
The remedies provisions are inadequate and inconsistent with human rights jurisprudence on the obligations of states with respect to remedy for civil and/or administrative harms. We stress that the better approach here lies with the Model Remedies Provision set forward by the previous Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism stipulating: “Any person whose human rights have been violated in the exercise of counter-terrorism powers or the application of counter-terrorism law has a right to a speedy, effective and enforceable remedy. Courts shall have the ultimate responsibility to ensure that this right is effective.”
The cumulative effect of the omissions and shortcomings identified above is that states may be able to legitimize their misuse of watchlisting measures to stymie dissent and crack down on the exercise of fundamental human rights. Meanwhile, those states committed to advancing effective, and thus human rights-compliant, watchlisting measures are left with a document that cannot be implemented in practice. By its own admission, the Toolkit “does not claim to offer detailed guidance on the incorporation of specific human rights protections into states’ development of terrorist watchlisting pursuant to UNSCR 2396.”
Worryingly, the Toolkit has already been affirmed in the multilateral space – including, as mentioned above, by reference in the U.N. Counter-Terrorism Executive Directorate mandate renewal. Here there is a stark risk that bad law produced outside the multilateral system at the behest of one state’s domestic counter-terrorism agenda infects the multilateral system as a whole. But there is still hope for a reckoning: the primary export of the Toolkit, the U.S. watchlisting system, may be subject to litigation – as may watchlisting systems in other jurisdictions. Despite a June decision in the U.S. Court of Appeals for the Fourth Circuit—which reversed earlier, promising decisions of the Eastern District of Virginia in the El-Hady case declaring the Terrorist Screening Database unconstitutional for failure to provide a “constitutionally sufficient procedural due process” and for violating the Administrative Procedures Act—there is still an opening for Fourth Amendment violations to take center stage in future litigation. From that international lawyers and courts should take their cue: watchlisting is ripe for litigation and review, and the lack of adequate legal regulation is a strong signal that the time is ripe to do so.