UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ni Aolain, wrote a new report (A/75/337) which is an unambiguous call for the UN and its member states to take concerted and concrete action to uphold international human rights, humanitarian and refugee law when applying counterterrorism measures. In calling for clearer humanitarian exemptions and protection for peacebuilding activities, the report concludes that, “to undermine the work of humanitarian actors using counterterrorism discourse and practice is to undermine the most essential rights of the most vulnerable people on the planet.” She urges the UN to engage with humanitarian and civil society organizations, as well as human rights and humanitarian law experts on a consistent basis. The Charity & Security Network submitted comments to the Special Rapporteur during preparation of this report.
The Special Rapporteur notes the positive interplay between humanitarian, human rights and refugee law, but says broad definitions of “terrorism” have been used to justify “the exclusion of the protective norms of both international humanitarian law and international human rights law. Such political moves have downstream and specific effects on the protection of individual and group rights.” This trend is exacerbated by:
“expansion of counter-terrorism into the realm of preventative and anticipatory criminal regulation, the lack of agreed definitions of the core prohibitions under counter-terrorism measures globally and nationally and the corresponding carte blanche for State overreach and systematic human rights violations in the name of countering terrorism and targeting of dissenters, minorities, humanitarian workers and civil society under the rubric of countering terrorism.” [p. 11]
Broad and vague measures that lack clear implementation guidance can restrict access to needy populations in areas controlled by non-State armed groups and “can result in the arrest and prosecution of humanitarian, human rights and other civil society actors.” This impedes their ability to carry out life-saving work and impedes activities that play an important role in peacebuilding, such as human rights representation, advocacy, training and conflict resolution.
The report notes that these issues often arise in the context of non-international armed conflict and involve non-state armed groups, making it “imperative that the humanitarian law norms applicable to non-international conflicts are robustly defended, that they are applied in practice and that the misuse of counter-terrorism discourse and norms to avoid the application of customary and treaty rules applicable to armed conflict is challenged.”
On the positive side, the report notes that the 34 counterterrorism-related resolutions the UN Security Council has passed since 2001 ha e explicitly acknowledge and addressed human rights and humanitarian law. The problem now is that “most references to the legal regimes are generic and lack the specificity required to ensure their observance in practice.” [p, 12] Overall, she finds that the “state of the applicable law as developed by the Security Council is inadequate.” [p. 13]
In calling for clear humanitarian exemptions, the Special Rapporteur notes that temporary authorizations and licensing systems “not only raise obstacles but are also often unworkable from an operational perspective. She says:
In addition, derogation, authorization or licensing systems are not compatible with international humanitarian law, adding a layer of consent to humanitarian action not foreseen under that body of law, which only requires impartial humanitarian organizations to obtain the consent of the belligerents concerned, not that of third States or international organizations, to conduct their activities. [p. 18]
In her conclusions, the Special Rapporteur recommends that the UN and the Security Council to integrate humanitarian and human rights law into counterterrorism measures in a systemic way, draft future resolutions in a manner that excludes independent, neutral humanitarian action from counterterrorism measures and engage civil society concerning the impact of its actions. She also recommended that member states adopt humanitarian exemptions, prosecute human rights violations and repatriate their nationals from detention camps. In particular, she urges states to protect the rights of children caught up in armed conflict.