By Kay Guinane
Despite setbacks for human rights, including use of emergency powers to suppress civil society, there are promising signs that the powers that be are ready to address the disconnect between counterterrorism measures and humanitarian and human rights obligations that all countries are bound to respect. With the 20th anniversary of 9/11 approaching in 2021, and the growing need to align these two legal regimes, it is encouraging to see two multilateral efforts to improve the situation:
- the UN Security Council Counter-Terrorism Committee’s working groups on Criminal Justice, Legal Responses and Countering the Financing of Terrorism and Promoting and Protecting and Promoting Human Rights and the Rule of Law while Countering Terrorism and Supporting Victims of Terrorism, and
- the Global Counterterrorism Forum’s Ensuring Implementation of Countering the Financing of Terrorism Measures While Safeguarding Civic Space Initiative
The UN Working Groups are following up on provisions of UN Security Council Resolution 2462, which consolidated its counterterrorism sanctions programs. Their objective is to develop a guidance document, to be published in 2021, that is “intended to support Member States in their efforts to implement countering terrorism financing measures in compliance with relevant Security Council resolutions, including resolution 2462 (2019) and in full respect for international human rights law.”
This fall the working groups solicited inputs from concerned stakeholders on a list of key issues relating to international human rights law (international humanitarian law is being considered separately). The Global NPO Coalition on FATF submitted inputs that offer a framework for how counterterrorism measures can be aligned with international human rights law, in part drawing on the Financial Action Task Force’s recommendation and guidance documents on nonprofit organizations. The input emphasized the negative impact counterterrorism measures currently have on civic space, which in turns limits the positive impact civil society organizations can make. It lists key factors to consider in making counterterrorist financing measures consistent with states’ human rights obligations. These are:
Characteristics of Measures that Meet Human Rights Standards
- Designed to address a specific risk
- Necessary to mitigate the risk
- Proportionate to the risk
- Time limited
- Least intrusive measure
- Targeted and material in scope
Characteristics of Measures Inconsistent with Human Rights Obligations
- One size fits all
- Check box lists
- Strict liability/zero tolerance standards
- Blanket (not targeted) approach
- Disrupts activity of legitimate NPOs
The input also noted that overly broad definitions of terrorist financing fuels over-regulation and over-compliance, including a risk-averse approach by financial institutions to nonprofit organizations.
The second effort is sponsored by the Global Counterterrorism Forum, an “informal, a-political, multilateral counterterrorism (CT) platform that has strengthened the international architecture for addressing 21st century terrorism.” Its Ensuring Implementation of Countering the Financing of Terrorism Measures While Safeguarding Civic Space Initiative is sponsored by the Morocco and the Netherlands and the UN.
Launched in the spring of 2020, the initiative’s objective is “strengthening the dialogue and coordination among government representatives, regulatory agencies, counterterrorism practitioners, civil society organizations, humanitarian actors, and other relevant stakeholders, including the private sector” and “provide a platform for experts from all stakeholders to discuss various perspectives on the problem, share best practices and lessons learned, and develop concrete guidance on ways to achieve effective implementation of Security Council Resolution 2462 (2019) without compromising on the critical work done by civil society organizations (CSOs) and humanitarian actors.”
It is conducting a series of workshops with civil society and other stakeholders and plans to publish a Good Practices document in September 2021.
Civil society is providing substantial input into these two efforts. It is to be hoped that on Human Rights Day 2021 we can look back and say that concrete progress has been made and that the potential of civil society to contribute to human security, long held back by counterterrorism measures, is on the way to being fulfilled.