The unparalleled growth of the UN counterterrorism architecture is the backdrop for a new annual thematic report presented to the UN General Assembly in October by Fionnuala Ní Aoláin, United Nations (UN) Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In it, she interrogates the UN system, its programming, practices, and normative frameworks, and fundamentally, its commitment to peace and the promotion of human rights.
In this interview with the International Peace Institute’s Agathe Sarfati and Global Observatory editor Eimer Curtin, Professor Ní Aoláin discusses the challenges that emerge in contexts where states are increasingly framing their responses to conflict and violence through a terrorism lens, rather than a peace lens, and the repercussions for local mediation and human rights endeavors.
This interview has been edited for length and clarity.
Counterterrorism (CT) is still the main paradigm in many armed conflict situations, even 21 years after 9/11, when much of the counterterrorism architecture was created. Why is it so attractive for member states?
One reason is that it is a profoundly permissive, enabling legal and political environment. States understand that they have enormous cover by using the framework of counterterrorism to engage in regulation and practices which might otherwise be found inconsistent with international law, particularly international human rights and international humanitarian law.
The second reason is that there are no consequences for states who misuse their counterterrorism measures. Much of what my mandate’s work has focused on is the extent to which states’ counterterrorism actions are counterproductive to preventing terrorism and violence generally—and there’s no accountability mechanism for that. Moreover, states are sometimes rewarded for systemic abuse related to counterterrorism.
The third reason is that states get “free things” for engaging in counterterrorism—there are lots of incentives and actual material goods attached to it. The UN has an enormous architecture of capacity-building and technical assistance which has been hardwired into the counterterrorism arena, often with no questions asked about the state of the rule of law and accountability at the domestic level.
Finally, there’s the kind of political affirmation, the discourse of value that applies to states’ action in counterterrorism, which is consistently lauded but rarely dissected on the basis of whether it works or it doesn’t, is it harmful or not, does it actually achieve the ends that it wants?
CT has been siloed away from core UN peace and security efforts. What are the impacts of this? And are there any openings for a course correction from the UN?
The fact that we have a normative CT framework that is, in my view, built on sand should be deeply concerning to international lawyers and persons concerned with the basic, fundamental rule-of-law principle of legal certainty. As we know, there is no agreed-upon definition of terrorism. Yet, we’ve observed the normative growth of counterterrorism over the last two decades—starting with UN Security Council Resolution 1373 and the series of resolutions that followed it—where the Security Council has defined the obligations of states to regulate a phenomenon which itself has not been defined and accepted by states.
I think the scale and pace of the extraordinary growth of the Office of Counterterrorism over the past five years really suggest that we have to pause. I have consistently made the case that we need a seriously pruned UN counterterrorism architecture. The new report makes a slightly different case. It makes the case that, actually, the place of investment by member states should be in those efforts that serve the interests of advancing peace and meaningfully delivering security, which is the peace agenda of the United Nations—the fundamentally underfunded peace agenda, including the work of the Peacebuilding Commission (PBC).
We have no comprehensive monitoring and evaluation in counterterrorism, so we don’t know if any of these efforts work to advance security and to support peace. In fact, we have lots of evidence that it’s not working. In some ways, the report is a clarion call to member states to really pay attention to what happens in the Fifth Committee. We all understand that budgets are not fungible, and this isn’t as simple as moving money that people want here over to there. But it is about requiring member states to ask fundamental questions about whether the budgetary expenditures that are being put in one part of the system are more likely to deliver on the fundamental goals of the Charter and the secretary-general’s Common Agenda than others. And political decisions should follow from that.
What influenced you to focus your annual thematic report on the impact of terrorism on peace while your mandate is on human rights?
Situations of armed conflict are increasingly overlapping with situations in which there is a presence of UN-designated terrorist actors or groups, or where counterterrorism law and policy is being implemented—something that has been increasingly obvious to multiple observers.
And at a very basic level—this is where I do some very pedantic but doctrinal work on the UN’s foundational document—it is important to understand the centrality of peace and human rights in the UN Charter, and therefore the centrality of those core values in the very purpose of the United Nations. These two aspects are interlinked in the text—both are found in the Preamble, in the first Chapter, and later in the text. This central placement matters symbolically and matters practically.
From my own point of view and observations in country situations as Special Rapporteur, I have engaged with governments who, while being party to an armed conflict, say they’re not dealing with a situation of armed conflict, and that counterterrorism is the dominant legal framework and discourse framework needed to address this set of complex “violences.” I take issue both with the presumption that CT trumps the law of armed conflict, human rights, and general principles of international law, and the presumption that you can, selectively, define complex conflict spaces as just CT spaces. I think it has served to undermine broader peace and security agendas at the UN.
I want to stress that the mandate I hold has really good working relationships with UN CT bodies, including the Office of Counterterrorism (UNOCT), CTED, and other specialized entities that work on countering terrorism. But I do think that we should all share the common goals of the Charter, which is the advancement of peace and security. We have to ask every piece of the architecture, particularly under the secretary-general’s new Common Agenda, whether or not we are realizing those goals.
What steps should the UN secretariat and the UN system take to recommit to the values and principles of the Charter?
Working on this report over the last year, we’ve had long and extensive conversations, a sustained process of engagement with the UN “peace architecture”—primarily the Department of Peace Operations (DPO), the PBC, and the Department of Peacebuilding and Political Affairs (DPPA). We’ve also had a process of specific engagement in national settings where these issues are extremely fraught. I had the opportunity to visit Mali this summer where my team undertook a training exercise for MINUSMA in human rights and counterterrorism. So, this report doesn’t come out of a vacuum. It’s really been a didactic process.
In terms of recommendations—some really have to be driven by member states, but many also apply to the UN system itself. Here, I would particularly call out the role of the Office of Legal Affairs, which has to defend the primacy of the Charter and the primacy of the core overarching legal frameworks: international law, international human rights law, and international humanitarian law. One clear takeaway is that not enough is being done to defend the primacy of the overarching legal systems, both within and without the UN system.
A second very specific recommendation is the need to strengthen the peacebuilding architecture. Some of that is providing money to protect and advance peacework in the system, but some of that is valuing and affirming the necessity of that work, and maintaining the integrity of that work.
The third is in regard to peacekeeping. The mission creep of counterterrorism into peace enforcement is not working for the UN, and it is certainly not making UN personnel on the ground safer. Prior work has very clearly articulated the risks for the UN. And I caution against infusing peacekeeping operations with peace enforcement or stabilization mandates that have UN peacekeepers in the jobs of doing counterterrorism, often on behalf of, or seen to be on behalf of, regimes that are human rights abusive, violate international humanitarian law, and often are not even democratically elected.
The final big issue I see is at the ground level, where grassroots peacebuilding work has to be done in communities that experience violence and harm. The work of counterterrorism in those spaces is making the work of grassroots peace activists and human rights and civil society actors harder. The language of “association with terrorism” that has crept into the criminal regulation of counterterrorism, in particular at the national level, is often and essentially criminalizing peacemakers. It criminalizes those who engage with armed actors and it criminalizes those who engage in humanitarian work.
Solving complex conflicts is really hard, but if, in the hardest places in the world, we essentially disable the most effective tools that we have—including the grassroots tools that are the most relevant and the most important—then we are not doing our jobs well.
You mention that CT entities actually are using the peacebuilding narrative and language to attract funding and programming. What are the risks, specifically for youth and women, and what can be done?
What’s happening in many complex conflict situations is defined by the absence of effective governance, the complete absence of the rule of law, and the failure to provide the most basic services that communities need. But enormous amounts of the funding going into those fragile or complex settings—even in terms of resources used to define what the problem is and how it should be managed—are often only accessible through CT or preventing and countering violent extremism (P/CVE) frameworks. This reframing of complex conflict situations into purely CT spaces is a profoundly bad move for the advancement of peace and security.
Don’t get me wrong—we have serious problems of violence and violent extremism. While there’s no agreed global definition of violent extremism, there are forms of violence driven by ideologies that are extremely destructive for the rule of law and for the redemption of human rights. But in contexts where the only resources that even civil society organizations and women’s groups can get from governments come under the banner of P/CVE, the result is that we see women being made responsible for P/CVE in their communities—as the report that I issued to the Human Rights Council two years ago on women, girls, and the family underscored. By designating women as the gatekeepers of the men in their communities or their families, you’re further entrenching the infantilization and commodification of those women. And sometimes you’re making their lives more dangerous because you’re making them the frontline on the interests of “Western” or other state agendas.
My own experience of living and spending much of my life in a conflict zone is that, unless you listen to what the people who are actually experiencing the conflict say they need, you are not fixing the conflict for them. My office is in the middle of its global study on the impact of counterterrorism on civil society. We are hearing from women in all parts of the globe about what that commodification feels like, how frustrating it feels. They are telling us—in Arria briefings at the Security Council or in the hallways in New York—what their community needs. They’re telling us that it’s not sexy, it’s just the bread-and-butter fixes which include good governance, rule of law, and access to basic services. And what they’re getting is preventing and countering violent extremism programming. So, in the end, we’re making many of their lives more difficult.
We’ve had 22 years of the Women, Peace and Security Agenda. We know the single most impactful thing that states could do right now is to listen to women in conflict spaces and actually do something with what they’re telling you, as opposed to listening to them and then continuing with what you were going to do anyway.
Is there a way for civil society organizations and other actors to resist CT and P/CVE programming, if this distorts the dynamics on the ground?
It’s really difficult. Civil society is being squeezed on all sides. It doesn’t have many good options and is often the least powerful actor in conflict spaces. As we know, there’s systemic abuse of counterterrorism measures against civil society actors that includes, for example, the shutting down of 300 civil society organizations in Nicaragua under countering terrorism finance laws. We see the erasure, on the basis of spurious evidence, of Palestinian civil society—some of the oldest and most distinguished human rights organizations on the planet—by the Israeli government under countering terrorism finance measures. In Egypt, we have seen over the past decade the imprisonment and torture of hundreds of people who’ve been charged under counterterrorism laws.
I think the answer is that we have to protect civil society. We saw the start of that this year when Norway made the decision to hold an Arria Formula meeting looking at the reprisals against women human rights defenders who speak about issues related to security. We need sustained protection from states for civil society. But we are nowhere close to getting it.
How can states address transnational threats and risks of what we call violent extremism without securitizing peace?
The answer is fidelity to the Charter. The answer is that peace work is really difficult. It involves long-term investment, consistent with the Sustainable Development Goals and with the Common Agenda. Securitizing peace doesn’t deliver what you think it’s going to deliver.
There’s a discourse that suggests that the work you need to do to prevent violence is somehow not doable; it’s elusive. The reality for those of us who’ve lived in violent societies and understand the complexity of violence is that the shiny bright new objects don’t fix anything. They’re really great for the short term but they fundamentally miss the point.
The point of addressing both national and transnational challenges—and transnational challenges often grow out of specific challenges at the national level—is so there’s an appropriate space for managing the violence that emanates from these groups. That’s why we have a criminal law system. That’s why we should prosecute people. That’s why we should ensure that they serve long sentences when they’ve committed serious violations of international law.
What is your main recommendation on the way forward?
I spend quite a bit of time in the report talking about the prescription of armed groups regarded as “terrorist,” and how this can create barriers to engaging in dialogue. And the report is very honest about the costs of that dialogue, particularly for victims of terrorism to whom my mandate is deeply committed. Yet, we understand that in many societies, making peace requires talking to adversaries, and it requires talking to people who have harmed you, harmed your family, harmed your community. All of that is painful, and difficult, and really complex. And it doesn’t mean that we forgo accountability, that we forego truth. But it does mean that if we are not prepared to speak to those who engage in violence, we will not find solutions to the kinds of entrenched violence that we experience in so many societies today. One of the core things we note is the importance of preventing counterterrorism from functioning as a barrier to dialogue with the communities, groups, and individuals whom we need to engage with in order to address the complexities of the conflicts we face around the globe.
In a system of human rights-based cooperation among states, investment in peace, which means investment in development, the rule of law, good governance structures, and communities, will yield in the long term to strengthen and secure societies in ways that prevent violence—monitoring and evaluation has proven that. Twenty years of the current counterterrorism model has not yielded that for states. So, we can make a human rights argument against it, but we can also just make a plain old efficiency, value-for-money argument against a model that is not working to deliver peace. It’s on all these grounds that the mandate encourages a fundamental rethink of what we see happening in this interface between counterterrorism and peace.
The 2022 annual thematic report, titled “Impact of counter-terrorism on peacemaking, peacebuilding, sustaining peace, conflict prevention and resolution,” can be found here.
Fionnuala Ní Aoláin has been the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism since 2017. She is a Regents Professor at the University of Minnesota and Professor of Law and at the Queen’s University Belfast School of Law, Northern Ireland. She is the author of several books, including Law in Times of Crisis and On the Frontlines: Gender, War, and the Post-Conflict Process.