United Nations Backslides on Human Rights in Counterterrorism

Ben Saul
Wednesday, October 16, 2019, 8:04 AM

Human rights and counterterrorism have been dramatically politicized and undermined at the United Nations over the past 18 months. In a spate of recent resolutions, the 47-member Human Rights Council (HRC) in Geneva and the General Assembly in New York have both retreated markedly from many of the hard-won normative gains in their earlier resolutions after 9/11, following concerted lobbying by the likes of Egypt, Algeria and Saudi Arabia—regimes not known for respecting rights in counterterrorism.

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Human rights and counterterrorism have been dramatically politicized and undermined at the United Nations over the past 18 months. In a spate of recent resolutions, the 47-member Human Rights Council (HRC) in Geneva and the General Assembly in New York have both retreated markedly from many of the hard-won normative gains in their earlier resolutions after 9/11, following concerted lobbying by the likes of Egypt, Algeria and Saudi Arabia—regimes not known for respecting rights in counterterrorism. The rot started in the HRC in 2017 and then spread to the General Assembly in 2018 and was repeated in the HRC in September 2019. The issues will erupt again at the General Assembly at its 74th session, with a new resolution expected in December 2019.

The critical change was brought about by General Assembly Resolution 73/174 on “[t]errorism and human rights,” adopted on Dec. 17, 2018, which drastically undermines the detailed human rights standards established in earlier General Assembly resolutions on counterterrorism between 2002 and 2017. The new resolution differs from preceding ones in three key respects: (a) It omits or dilutes many earlier references to protecting specific rights when countering terrorism; (b) it is focused more on the “detrimental effects” of terrorism on human rights than on state violations of rights by counterterrorism measures; and (c) many provisions are not about human rights at all but, instead, are concerned with suppressing terrorism—and thus detract from a much-needed emphasis on respect for rights precisely to correct the prevailing emphasis on suppression, including from the Security Council, often at the expense of rights.

The resolution has received little comment so far, perhaps because the General Assembly’s annual resolutions on the subject are normally routine and a radical departure from earlier consensus is unexpected. Its shift in emphasis away from human rights in counterterrorism not only harms human dignity and basic values but also threatens international and national security. This is because the links between state violations of human rights in counterterrorism and terrorist radicalization, recruitment and violence are well recognized, including in the U.N.’s own Global Counter-Terrorism Strategy of 2006, which states have committed to implement.

A Brief History of Human Rights and Counterterrorism Resolutions

Understanding the current regression on human rights requires a little background on human rights, terrorism and counterterrorism at the U.N. Before the shift in 2018, there were two distinct—and quite different—chains of General Assembly resolutions addressing human rights in this area: resolutions on “human rights and terrorism” from 1993 to 2005, and resolutions on human rights and counterterrorism from 2002 to 2017.

The first chain of resolutions sprang out of the 1993 Vienna Conference on Human Rights, which declared that terrorism “aimed at the destruction of human rights” (paragraph 17). Regular General Assembly resolutions from that year until 2005 accordingly addressed the human rights effects of terrorism, not counterterrorism.

These General Assembly resolutions were controversial. Western states (particularly the United States and members of the European Union) protested that terrorists could not technically “violate” human rights because only states bear legally binding human rights obligations. Under human rights treaties, states have detailed duties to respect, protect and fulfill rights, and to provide remedies for violations. Nonstate actors, including terrorist groups, are not bound by comparable legal duties (unless they are de facto state authorities), even if terrorist acts self-evidently have adverse effects on rights in a descriptive, nonlegal sense. The focus in the early General Assembly resolutions on the effects of terrorism on human rights thus distracted from efforts to hold states themselves accountable for violations of their human rights obligations when countering terrorism.

The General Assembly’s approach shifted as counterterrorism operations expanded after 9/11. From 2002 to 2017, the General Assembly regularly adopted a thematic resolution on “protecting human rights and fundamental freedoms while countering terrorism.” Mexico initiated the 2002 resolution (co-sponsored by various Latin American states plus Canada, Liechtenstein, Croatia, New Zealand and Switzerland) and has sponsored them ever since. These resolutions overlapped with the earlier ones on “terrorism and human rights” until 2005, when those ceased.

These newer resolutions shift the emphasis toward ensuring that states comply with their human rights obligations while countering terrorism. The annual resolution became progressively stronger and more detailed over time in its elaboration of human rights standards specific to counterterrorism, in response to concerns about state practices. By 2017, the resolution (72/180) had matured to contain a “mini-charter” on human rights when countering terrorism, comprising 23 subparagraphs, each devoted to a specific issue (explained below). These resolutions made only passing, preambular reference to terrorist acts as being “aimed at the destruction of human rights” or “detrimental” to human rights, but they did not characterize them as “violations.”

The change in emphasis that began in 2002 was driven by concerns about excessive state counterterrorism measures and a sentiment that Security Council resolutions had paid insufficient attention to human rights (including in Resolution 1373 of 2001, the quasi-legislative response to the 9/11 attacks, which required all states to pass and enforce extensive new counterterrorism laws). While a third chain of annual resolutions on “[m]easures to eliminate international terrorism” has also cursorily urged states, from 1994 to the present, to respect human rights when countering terrorism, the dedicated resolutions on human rights and counterterrorism provided much-needed elaboration of that basic premise.

Politicization From 2017 to Today

Drastic regression is evident, however, in last year’s sui generis Resolution 73/174 on “[t]errorism and human rights,” which fits the mold of neither the 1993-2005 resolutions (on “human rights and terrorism”) nor the 2002–2017 resolutions (on counterterrorism). The 2018 resolution still generically urges states to comply with their human rights (and refugee and humanitarian law) obligations in countering terrorism (paragraph 2), and expresses concern at state violations (paragraph 5), but backslides on human rights in three key respects: (a) It weakens the human rights standards in the previous resolutions, (b) it shifts the emphasis to rights abuses by terrorists rather than states and (c) it downplays the importance of human rights in counterterrorism.

The about-face originated in the HRC in 2015, when Egypt (leading a group of mainly Arab states, including Saudi Arabia, Algeria and Libya, plus Cuba, Venezuela and Sierra Leone) successfully sponsored HRC Resolution 28/17 on the “effects of terrorism on the enjoyment of human rights.” Similar resolutions were adopted in 2016 and 2017. These resolutions presented a rival narrative to the predominant focus of HRC resolutions since 9/11 on human rights in counterterrorism (which also continued after 2015, until 2017). The 2015 resolution was divisive in the HRC, with 25 votes in favor, 16 against, and 6 abstentions.

Then, in 2017, emboldened by its success in the HRC, Egypt successfully sponsored (along with Saudi Arabia, Jordan and Morocco) General Assembly Resolution 72/246, which similarly focused on the effects of terrorism (not counterterrorism) on human rights. This too was divisive, with 95 states in favor, one against (South Africa) and 58 abstentions. Those in favor were mostly Middle Eastern, African, and Asian states (including China); some Latin American countries; and the United States and Russia. Those against included most of Europe; some of Latin America; and Japan, Britain, Turkey, Canada and Australia. In contrast, the last General Assembly resolution on human rights and counterterrorism, also in 2017, was adopted by consensus.

In March 2018, the two competing HRC resolutions from 2017 were merged into a single new resolution, Resolution 37/27 on “terrorism and human rights,” with Mexico compromising with Egypt to co-sponsor it. Far from reflecting a balanced hybrid of the two approaches, Egypt’s concerns appear to have prevailed over Mexico’s. The emphasis in the resolution is thus more on terrorism as a threat to human rights than on counterterrorism measures violating rights. This merger, and its emphasis, duly spilled over into the General Assembly (via the Third Committee) in Resolution 73/174 of 2018, co-sponsored by Egypt, Mexico, Belize and Monaco, which deemphasized state accountability for human rights violations and focused instead on the suppression of terrorism.

Most recently, in late September 2019, the HRC again adopted a weakened resolution, setting the scene for the General Assembly to follow suit at its current 74th session with a probable resolution in December 2019. This latest HRC resolution is even worse, since it requests the U.N. special rapporteur on human rights and counterterrorism to now report on the “negative effects of terrorism” on human rights—thereby diluting her focus on holding states accountable for violations. In this context, it comes as no surprise that the resolution was co-sponsored by states with very poor human rights records in counterterrorism—Egypt, Algeria, Saudi Arabia and Jordan—in addition to Tunisia, Georgia and Mexico. Concerned states and civil society organizations will need to make a concerted effort to reverse course at the General Assembly.

Weakening of Human Rights Standards

The 2018 resolution substantially weakened the human rights protections in the preceding resolutions. As mentioned earlier, by 2017 the annual General Assembly resolution had evolved to include a detailed “mini-charter” of rights (paragraph 5) comprising 23 subparagraphs. Some of these issues are still mentioned (some in a similar level of detail) in the 2018 resolution, including access to justice and remedies, criminal justice standards (equality, nondiscrimination, fair trial/due process and judicial review of detention), the prohibition on torture, civil society freedoms, nondiscrimination in all counterterrorism matters, and privacy.

However, many detailed rights mentioned in the operative paragraphs of the earlier resolutions are omitted altogether in Resolution 73/174, including those on derogation in emergencies; non-refoulement (that is, the right of individuals not to be returned to countries where they would be at risk of serious harm); minorities; deprivation of liberty; surveillance and interception of communications, and data protection; economic, social and cultural rights; rights concerning border controls; safeguards in interrogation; remotely piloted aircraft (drones); and recruitment and use of children. Specific references to many treaties also vanished in the 2018 resolution (such as the Convention against Torture [1984], the Convention on Enforced Disappearances [2006], the Geneva Conventions [1949] and Protocols [1977], and the Refugee Convention [1951] and Protocol [1967]). The resolution further omits the earlier preambular references (in the context of non-refoulement and torture) to diplomatic assurances, memoranda of understanding, and transfer agreements and arrangements.

Other earlier provisions are diluted in the 2018 resolution, such as a much briefer mention of the principle of legality in the criminal law, as well as safeguards in detention. Whereas the 2017 resolution positively urges states to “respect their international obligations regarding humanitarian actors and to recognize the key role” they play (paragraph 7), the 2018 resolution frames the issue negatively, and in a more limited fashion, by merely urging states not to “impede humanitarian and medical activities or engagement” (paragraph 13).

Human Rights Implications of Terrorism Framing

The 2018 resolution is also much more focused than earlier resolutions on addressing the human rights effects of terrorism than counterterrorism. In this respect, it signals a partial reversion or regression to the resolutions of 1993-2005. Whereas the 2017 resolution does not refer to the effects of terrorism on human rights, the 2018 resolution expresses concern at the “detrimental effects” of terrorist acts on human rights and at the targeting of communities or individuals by terrorists on the basis of religion, belief or ethnicity; and it condemns “systematic and widespread abuses of human rights” by terrorist groups (paragraphs 1, 19 and 2, respectively). This focus on the effects of terrorism on human rights distracts from violations of human rights in counterterrorism committed by states, which have the primary legal responsibility to protect those rights.

Relatedly, the 2018 resolution promotes “solidarity” with the victims of terrorism and the importance of protecting their rights (paragraph 7). This rhetorical commitment to victims of terrorism falls far short, however, of endorsing the detailed, rights-based “[f]ramework principles for securing the human rights of victims of terrorism” advocated by former UN Special Rapporteur Ben Emmerson, which states have been reluctant to seriously embrace. Further, U.N. member states have not backed their rhetorical commitment by creating and funding an international funding mechanism to compensate victims of terrorism. Because nonstate terrorist groups may not bear human rights obligations, it is usually impossible or impractical to obtain remedies (including compensation) directly from them.

Emphasis on Counterterrorism

The 2018 resolution’s emphasis on the ways in which terrorism adversely affects human rights is also reflected in its many provisions concerned with the prevention and suppression of terrorism in general, rather than with human rights. Whereas the first paragraph of the 2017 resolution reaffirmed that states must comply with human rights while countering terrorism, the 2018 resolution instead leads with a condemnation of terrorist acts as criminal and unjustifiable—a statement usually found in the General Assembly’s separate chain of resolutions on “[m]easures to eliminate” terrorism. Many other provisions of the resolution then squarely tackle terrorism rather than the human rights implications of counterterrorism, introducing provisions not found in the earlier human rights resolutions. For example, the 2018 resolution calls on states to:

  1. Protect people in their territory from terrorist acts (paragraph 4).
  2. Recognize the roles of religious leaders and institutions, local communities and community leaders, and women in countering terrorism and violent extremism conducive to terrorism (paragraphs 15-16).
  3. Prevent terrorists from benefitting from ransom payments or political concessions; prevent political, material or financial support from reaching terrorists (including by criminalizing terrorist financing), deny terrorists safe haven, freedom of movement, operation and recruitment, and bring to justice or extradite terrorists (paragraph 20).
  4. Refrain from supporting terrorists or terrorist entities (paragraph 21).
  5. Adopt rehabilitation and reintegration strategies for returning foreign fighters (paragraph 22).
  6. Prevent the use of information and communications technology (particularly the internet and media) for terrorist purposes (including propaganda, advocacy, incitement to violence, recruitment, financing, preparation, planning, and commission of terrorism) (paragraphs 30-31).
  7. Promote a culture of peace, justice, development, tolerance, respect for diversity, pluralism, inclusion, dialogue among civilizations and interfaith and intercultural understanding (paragraphs 26-27).
  8. Cooperate to address the threat of foreign fighters and prevent their transit, the conditions conducive to terrorism, and the drivers of radicalization (preamble).

While some of these measures are qualified by injunctions to respect human rights, the provisions invariably privilege the importance of counterterrorism measures, addressing them more prominently at the start of the relevant paragraph, with human rights compliance coming as an afterthought. Many of these provisions would be more appropriately located in the General Assembly’s resolutions on “[m]easures to eliminate” terrorism, drafted through the General Assembly’s Sixth (legal) Committee since the 1970s, than in a resolution supposedly dedicated to protecting human rights and adopted through the Third Committee.

Why the General Assembly’s Commitment to Human Rights Matters

Unequivocal normative signals from the General Assembly on the necessity of respecting human rights when countering terrorism are vital. The Security Council, and most states, are still very much focused on law enforcement to suppress terrorism and are continually testing the limits of human rights obligations in certain areas of counterterrorism. While Security Council resolutions now often briefly refer to respect for human rights, as the UN special rapporteur on human rights and counterterrorism observes, “[T]he actual impact of such generic mentions, without clear and explicit human rights guidance contained in the text, is questionable.”

In principle, such mentions should be sufficient to refer states to the applicable human rights norms binding them under treaties and customary international law. In practice, however, the continuous development of new international counterterrorism norms leaves much room for uncertainty, ambiguity, error or inadvertent failure to protect rights. Certain states have also flatly rejected the interpretation of certain norms, such as on the extraterritorial application of human rights obligations. Further, the “soft” monitoring functions of the (under-resourced) Geneva-based human rights bodies may encourage some states to view them as more marginal, or lower in status, than the Security Council and its binding security powers.

The General Assembly’s universal membership, and its sweeping constitutional mandate under the U.N. Charter (including on international security), gives it special normative authority to push back against excessive counterterrorism measures that violate human rights. This includes instances when Security Council measures implicitly facilitate state violations of human rights when they implement council measures, or when the 47 elected states of the HRC veer off-mission.

However, even a return to the reasonably good pre-2018 General Assembly resolutions would not be enough to ensure real-world compliance with human rights. As the special rapporteur rightly notes, Security Council resolutions are able to impose highly prescriptive counterterrorism obligations on states—from the arcane detail of its ever-expanding anti-terrorist financing regime (most recently in Resolution 2462 of 2019) to the highly invasive travel data collection demanded to address foreign terrorist fighters in Resolution 2396 of 2017. These obligations are backed by intensive procedural machinery established by the Security Council to monitor state implementation. The Security Council should similarly utilize its quasi-legislative and monitoring powers to require states to take rights just as seriously as suppressing terrorism.

This is not just because human rights are fundamental values under the U.N. Charter that the Security Council must uphold. The drafters of the charter were acutely aware that security and human rights are independent, and they framed prospective powers under the charter accordingly. From a security standpoint, it is also because state violations of rights, including in counterterrorism, are “conditions conductive” to violent extremism and terrorism—and thus make it harder to secure the world from terrorism. The General Assembly’s own Global Counter-Terrorism Strategy has, since 2006, squarely acknowledged this and was itself a response to an excessive post-9/11 emphasis on suppression of terrorist actors at the expense of human rights. The secretary-general’s 2015 Plan of Action to Combat Violent Extremism draws similar conclusions, stating (at paragraph 27) that:

Violations of international human rights law committed in the name of state security can facilitate violent extremism by marginalizing individuals and alienating key constituencies, thus generating community support and sympathy for and complicity in the actions of violent extremists. Violent extremists also actively seek to exploit state repression and other grievances in their fight against the state. Thus, Governments that exhibit repressive and heavy-handed security responses in violation of human rights and the rule of law, such as profiling of certain populations, adoption of intrusive surveillance techniques and prolongation of declared states of emergency, tend to generate more violent extremists. International partners that are complicit in such action by States further corrupt public faith in the legitimacy of the wider international system.

It is essential that all states in the HRC and the General Assembly reassert the importance of human rights in counterterrorism and not discard human rights as readily as in the immediate aftermath of 9/11. Global human rights protection is now so precarious in a world of great power realignment, including an emboldened Russia and a resurgent China. Traditional U.S. leadership on human rights is in retreat and some other historical champions of rights are in disarray (such as Brexit Britain). Indiscriminate state violence is commonplace, from Syria to Saudi Arabia, and impunity for it is rife. The current General Assembly is yet another test for states whether to allow human rights to decline unabated or to push back against the rising tide of impunity for state violence.

Ben Saul is Challis Chair of International Law at The University of Sydney, an Associate Fellow of Chatham House in London and the International Centre for Counter-terrorism in The Hague, and a UN counter-terrorism adviser. He recently co-drafted the United Nations Model Law on Victims of Terrorism. He has taught at Harvard and Oxford.

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