About two weeks after the attack of September 11th, 2001, the United Nations Security Council (UNSC) passed one of the most wide-ranging Security Council resolutions ever—Resolution 1373. This was the second resolution in response to the events of that day, the first being Resolution 1368, which was passed quickly on September 12 and called upon the international community to “redouble its efforts” to prevent and suppress terrorist acts. Compared to 1368, Resolution 1373 was more like a “super-legislative” resolution, shifting the regulatory landscape of international law and counterterrorism. It requires states, among other things, to criminalize terrorist activities; to freeze the funds and financial assets of terrorists and their supporters; to ban others from making funds available to terrorists; and to deny safe haven to terrorists. It placed mandatory obligations upon states, and came with an enormous weight of international political consensus behind it, and was adopted by the Security Council on September 28th, 2001 under Chapter 7 of the UN Charter.
Yet 1373 is framed by its affirmation that terrorist acts and acts of international terrorism constitute a threat to international peace and security, while no definition of these key terms was offered. The gaps in definition persist to this day, despite a definitional stopgap offered by UN Security Council Resolution 1566. This lack of definitional clarity has spawned a systemic problem of the misuse of counterterrorism law and practice in domestic legal systems across the globe. The misuse—which includes the deliberate targeting of civil society actors and the delegitimization of human rights defenders including women—profoundly affects those exercising their legitimate and protected rights to assemble, express, opine, and practice religious beliefs, and engage in the public life of their societies. It impacts on the essential work of impartial humanitarian actors in some of our most complex and fragile conflict settings; it shapes the financial activities of private and public actors alike; and it is increasingly intertwined with new technologies that are essential to the functioning of everyday life for millions on the plant, by normalizing surveillance, data collection, monitoring, and reporting on the most intimate aspects of our lives.
The measures contemplated by 1373 had far-reaching implications for the protection of human rights, but the resolution made no comprehensive or even specific reference to the need for states to comply with human rights standards in the suppression of terrorism. Instead, the preamble to the resolution affirms the need to combat terrorist acts “by all means, in accordance with the Charter of the United Nations.” As the UN Charter makes substantial references to human rights protection, such a reference could constitute an implicit reference to the need to promote and respect human rights norms. It is profoundly regrettable that this has not been the shared and understood operation of Security Council counterterrorism resolutions. In practice, the obliqueness of this positive interpretation has only served to highlight the lack of an explicit statement in the resolution and left the strong impression of second-class status for human rights in responding to terrorism, a systematic problem that haunts the United Nations, regional bodies, and state practice 20 years later.
The result is human rights “lite” counterterrorism by design, which is enabled by an impenetrable deference to the invocation of “terrorism” and in parallel with the invocation of other terminologies including “violent extremism”, “extremism,” and “radicalization” as a justification for a range of human rights–abusive state practices. Stating the obvious, none of these terms have an agreed definition in international law. The deference to state practice in the counterterrorism arena has been a boon for states seeking to strengthen their national security apparatus. It has enabled some states to legitimately (and with few external constraints) crackdown on domestic dissenters, categorize insurgents to avoid the application of international humanitarian law (even if internal conflicts reach the threshold of self-determination claims under international law or the thresholds of Protocols I and II of the Additional Protocols to the Geneva Conventions), and to modify domestic law on the basis of terrorism even if the proportionality and necessity for fundamental recalibration of legal norms at the domestic level remain empirically unproven. The result for the protection and promotion of human rights around the globe has been chilling and extraordinarily destructive to the rule of law in multiple contexts.
In parallel to these normative developments, an enormous and ever-expanding UN architecture on counterterrorism has grown since 2001. The counterterrorism architecture has been consistently critiqued for its lack of attention to the human rights implications of counterterrorism, including by the mandate I hold. Despite increasing references to human rights treaties in the most recent slew of Security Council resolutions, human rights are in practice “minimized to a generic line in a resolution, reduced to a few questions on a country visit survey, comprised of a small staff sprinkled throughout the Secretariat and Security Council bodies, securitized in the PVE agenda, and underfunded in its programming.” Human rights actors are marginal to counterterrorism terrorism practice, not least because of the lack of resources and capacity that defines our ability to be present.
One can track the early assault on human rights in the immediate aftermath of 9/11, including the lack of any formal institutional counterbalance to ensure the mainstreaming of human rights oversight of country action; reporting and assessment through the Counter-Terrorism Committee and the Counter-Terrorism Executive Directorate (CTED); the lack of access in any meaningful and systematic way for civil society actors and human rights defenders to the counterterrorism architecture; and the minimal capacity of existing human rights entities within the counterterrorism architecture, including the cogent reality that the United Nations Special Rapporteur on Counter-Terrorism and Human Rights is a part-time, expert officeholder who functions with minimal administrative support. Some movement has occurred in the past two decades, as counterterrorism entities such as CTED have brought human rights expertise ‘in-house’, but almost no state counterterrorism assessments are made public (with the single exception of Finland). Thus, it is hard to gauge in a meaningful way what kind of human rights advice and oversight is being given to states about their counterterrorism practices. Other positive developments include the establishment of human rights as one of four pillars within the Global Counter-Terrorism Strategy, the increased recognition that conditions conducive to terrorism include state abuses of individual and collective human rights, and the willingness of national and regional courts to name state abuses of fundamental human rights in the course of counterterrorism practices.
What we do know is that the costs individuals and communities experience from negative and repressive counterterrorism practices are extensive. Twenty years after 9/11, the dignity and human rights of individuals and groups around the globe remain under sustained assault from counterterrorism and security practices, with few restrictions or meaningful oversight. The constriction of civic space and the systematic violations of human rights associated with counterterrorism practice are not aberrations, but rather direct and logical products of the normative framework and the institutions and structures established, within and without the United Nations, to support counterterrorism practice.
When first written the Global Counter-Terrorism Strategy identified the need to “strength[en] and make best possible use of the capacities of the United Nations in areas such as conflict prevention, negotiation, mediation, conciliation, judicial settlement, rule of law, peacekeeping, and peacebuilding.” That identified need is still true twenty years after 9/11. More counterterrorism capacity and a bigger counterterrorism footprint in the United Nations will stymie rather than promote the complex and long-term solutions that are needed to address the conditions and contexts that produce and sustain terrorism. Moreover, reflecting on one aspect of conditions conducive to terrorism, namely the denial of the rule of law in general and in counterterrorism strategies in particular, requires us to reflect on how counterterrorism practice may function to undermine the rule of law, weaken institutional accountability, discourage transparency, and embolden the security sector rather than the myriad of interlocking legal capacities that advance the rule of law.
To that end, as I have regularly remarked, human rights–abusive counterterrorism does not make us safer or more secure. More precisely, it undoes security in multiple ways and may ultimately enable the conditions that enable and sustain more violence. As we advance this 7th Global Counter-Terrorism Strategy review, profound recalibration, restraint, and meaningful oversight of counterterrorism practices and institutions are needed, particularly within the United Nations system. Without it, the Sisyphean task of dually advancing rights and security remains an uphill and unfinished commission.
This article is part of a series on the role of the UN system in preventing violent extremism and countering terrorism (PVE/CT), done in collaboration with the Brian Urquhart Center for Peace Operations.
Fionnuala D. Ní Aoláin is the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. She tweets at @NiAolainF.