Discussion report 

HRC55: Navigating the Intersection of Counter-Terrorism and Human Rights: Challenges and Strategies
The 55th Session of the Human Rights Council

26th February – 5th April 2024

Item 3 – Interactive Dialogue with Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism

 12 March 2024

By Héloïse Carel / GICJ

Executive summary

On 12 March 2024, the 55th Session of the Human Rights Council hosted an Interactive Dialogue with Mr Ben Saul, the newly appointed Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, who outlined his strategic approach. 

In his report, he had called for safeguarding of human rights amidst counter-terrorism efforts, advocating for individuals affected by measures such as arbitrary detention in northeast Syria and Guantanamo Bay. There Saul highlighted concerns over escalating human rights abuses, including unlawful killings and arbitrary detention, and stressed the need to balance security imperatives with fundamental rights. He called for robust counterterrorism legislation and increased international collaboration to protect human rights. He underscored the imperative of repatriating individuals in compliance with international law in conflict zones like northeast Syria, citing positive examples from Germany, North Macedonia, and France.  

Systematic practices like mass arbitrary detention and secret internments targeting individuals accused of terrorism-related activities were matters of special concern. Many countries expressed  apprehension regarding counter-terrorism policies being used to control dissidents and political opponents, highlighting the authoritarian tendencies observed in some regimes. Attention was drawn to the role of new technologies in counter-terrorism, with Pakistan discussing Artificial Intelligence (AI) and digital surveillance. The Special Rapporteur emphasised the need to regulate these technologies effectively. Concerns were also raised by China and Malaysia about associating terrorism with specific religions, contributing to discrimination. Palestine and Pakistan’s concerns about the deleterious impact of overly broad terrorism definitions were echoed by the Special Rapporteur. Palestine specifically called out the international community for their inability to qualify Israel’s conduct as state terrorism. The representative of Palestine also condemned the overzealous use of the qualification of terrorism used by Israel to dehumanise Palestinians.

Context

The mandate of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, previously held by Ben Saul, was established to address the misuse of legislation and policies in the fight against terrorism. Originating from the Commission on Human Rights in resolution 2005/80 in April 2005, this mandate aimed to advocate for rights-compliant counterterrorism measures, provide support and technical assistance to states and relevant stakeholders, and anticipate long-term needs and strategies in countering terrorism.

Ben Saul, as the fourth holder of this crucial mandate, was committed to continuing the legacy of his predecessors by conducting precise, thorough, balanced, and innovative human rights analysis and advocacy in countering terrorism. He pledged to fulfil his mandate independently, impartially, and objectively to maintain the confidence of both states and civil society. Recognising the sensitivity surrounding counterterrorism efforts, Saul aimed to engage in constructive dialogues with states to address concerns, identify solutions, and foster diplomatic relationships based on trust. He acknowledged that some rights violations might occur inadvertently or due to a lack of familiarity with human rights standards, and he stood ready to provide advisory services and technical assistance to remedy such deficits. However, where violations persisted or were deliberate and systemic, Saul reserved the right to publicly call upon states to be accountable for their actions. He also recognised civil society organisations as indispensable stakeholders in countering terrorism and vowed to consult and collaborate with them.

Summary of the UN report

The United Nations Special Rapporteur's comprehensive report on human rights in countering terrorism provided a nuanced synthesis of perspectives from former Rapporteur Fionnuala Ní Aoláin and himself, illustrating the delicate balance required between security imperatives and human rights protections in the global fight against terrorism. Ní Aoláin's tenure focused on engaging diverse states, conducting country visits, and addressing thematic concerns such as the impact of counter-terrorism laws on civil society, arbitrary detention, and human rights within the UN counter-terrorism architecture. She advocated for international regulation of the spyware industry and underlined the utmost importance of human rights considerations in countering terrorist financing. Building upon this foundation, Saul's approach involved extensive consultations, issuing communications to states, and active participation in international forums. He aimed to continue advocating for human rights in counter-terrorism efforts, stressing the worsening human rights violations despite previous recommendations and the need to place human rights at the forefront of counter-terrorism activities. Saul sought constructive engagement with states, provision of technical assistance, and condemnation of deliberate or systemic rights violations. Both Rapporteurs identified key thematic priorities, including the impact of counter-terrorism measures on civil society, violations in detention facilities such as those in northeastern Syrian Arab Republic and Guantanamo Bay, and human rights within the UN counter-terrorism system. They stressed the importance of accountability for violations, repatriation efforts for detainees, and cooperation between states and international bodies. Additionally, Saul underscored the disproportionate focus on repressive measures in countering terrorism and advocated for addressing root causes and respecting human rights as fundamental in the fight against terrorism.

A critical aspect highlighted in the report was the evolving landscape of counter-terrorism efforts, which now includes a diverse array of non-State actors alongside traditional state authorities. Private companies have become increasingly involved, offering various security-related services, including surveillance technology, intelligence analysis, and combat support in armed conflicts. These actors, sometimes mandated by states, perform regulatory functions such as financial institutions conducting due diligence for counter-terrorism financing measures or technology companies moderating online extremist content. However, concerns had been raised about the human rights implications of private sector involvement, particularly regarding online content moderation and surveillance technologies. Civil society organisations also play a significant role in preventing violent extremism through voluntary programs funded by states, while victims of terrorism may have engaged in advocacy or support initiatives. The report emphasised the need for rigorous scrutiny of human rights implications arising from the use of new technologies in counter-terrorism efforts, including covert digital surveillance technology like spyware, facial recognition technology, and the protection of critical infrastructure and vulnerable targets. It called for normative work to assess compliance with international human rights law and analyse gender implications of counter terrorism policies.

Moreover, the report addressed the issue of accountability and reparation for human rights violations in counter-terrorism activities, stressing the importance of justice for victims and ensuring remedies. While some examples of successful accountability processes exist, many cases still have suffered from impunity, highlighting the need for continued scrutiny and action to address structural barriers to justice. The Special Rapporteur's recommendations included encouraging states to facilitate official country visits to share best practices, providing adequate resources to support the mandate effectively, ensuring independent vetting of counter-terrorism measures for human rights compatibility, prioritising accountability for violations, and enhancing engagement with civil society organisations. Regional organisations, as well as international bodies like the International Civil Aviation Organisation (ICAO) and the International Maritime Organisation (IMO), were urged to share practices and experiences to enhance human rights protection in counterterrorism efforts. Through these measures, the report aimed to uphold human rights while effectively countering terrorism in a manner consistent with international law and norms.

Interactive dialogue 

At the 25th meeting of the 55th Regular Session of the Human Rights Council, an interactive dialogue was held regarding the need to uphold human rights standards when implementing counter-terrorism policies. Ben Saul, the newly appointed Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, presenting his first report to the council, commenced his address by expressing his gratitude for his appointment. He emphasised the importance of effective counterterrorism laws to prevent violations of human rights and protect victims of terrorism, noting progress in some states but highlighting pervasive human rights violations in global counterterrorism efforts. Saul pointed out the misuse of counterterrorism measures leading to violations of rights and freedoms, including unlawful killings, arbitrary detention, torture, and privacy breaches. He highlighted the weaponisation of terrorism definitions to target civil society and restrict freedoms. Additionally, Saul addressed impunity for state violations, complicity in military violence, and the failure to address the root causes of terrorism. He outlined his priorities for the next three years, including ensuring regional organisations respect human rights, regulating new counterterrorism technologies, and holding states accountable for violations. Saul also pledged to continue efforts to protect detainees in Syria and Guantanamo Bay, prevent abusive counterterrorism measures against civil society, and safeguard human rights within the UN. Saul presented reports from his predecessor's country visits to Bosnia and Herzegovina, and Germany and North Macedonia. He commended positive efforts in repatriation, reintegration, and prosecution of individuals returning from conflict zones, while urging further action to address human rights obligations, strengthen reintegration efforts, and improve prison conditions. In conclusion, Saul emphasised the urgent need for repatriation of detainees from northeast Syria and highlighted successful repatriation efforts where political will existed. He stressed that repatriation could be compliant with international law, respect human rights, and address security concerns when governments are committed to it. 

The president then opened the floor to the States' speakers.

During the discussion, the representative of Bosnia and Herzegovina expressed concern about the significant terrorist threat emanating from the country and its potential impact beyond its borders. Despite efforts towards EU accession, up to 20 terrorist groups reportedly operated within its borders, influenced by foreign Jihadists who arrived during the 1992-1995 war. The representative highlighted the lenient treatment of returning ISIS fighters in BIH courts and underscored what Bosnia perceives to be the need to resist the political ascent of Islamist parties. 

The delegate of Germany emphasised the paramount importance of promoting and safeguarding human rights and fundamental freedoms in countering terrorism. Germany warmly welcomed the visit of the UN Special Rapporteur and her team in July 2023, focusing extensively on issues such as repatriation, return, integration, and prosecution for individuals returning from conflict zones, particularly Syria and Iraq. Germany acknowledged the importance of repatriating nationals from conflict areas, particularly children and women with German citizenship, to prevent indefinite arbitrary stays in dire circumstances.

The representative of North Macedonia expressed gratitude to the Special Rapporteur for his office’s work toward the promotion and protection of human rights and fundamental freedoms in countering terrorism for the report presentation. North Macedonia actively advocated for the repatriation and return of its citizens from conflict zones, exemplified by citizens already returned from Syria and Iraq. The country's fight against terrorism was underpinned by adopted national strategies and action plans, with the national committee for the prevention of violent extremism and countering terrorism serving as the leading authority. Notably, North Macedonia boasted an extremely low terrorism risk, remaining unchanged at zero points according to the Global Terrorism Index in 2023.

The delegate of France expressed support for the Special Rapporteur's mandate and appreciated the recognition of its recent repatriation efforts from northeast Syria, emphasising the importance of child welfare in these actions. With 169 children and 57 women repatriated, France highlighted its comprehensive reception and care system, ensuring legal processes for adults and psychological support for minors. Stressing the necessity for counterterrorism measures to align with international law, France underscored the targeted and proportionate nature of its legal framework, prioritising respect for fundamental freedoms and human rights while addressing security concerns. Additionally, France emphasised the importance of international humanitarian law and provided humanitarian exemptions to anti-terrorism sanctions where necessary. Acknowledging the significance of emerging technologies in counterterrorism, France commended the Special Rapporteur's focus on this issue and reiterated its commitment to upholding humanist values and supporting victims of terrorism.

The representative of Iraq welcomed the Special Rapporteur and expressed support for his mandate, emphasising the importance of accountability and providing remedies for victims of terrorism. Highlighting Iraq's commitment to preserving diversity, the delegation underscored its efforts in repatriating citizens from northeast Syria camps. Iraq outlined comprehensive plans and programs aimed at facilitating the psychological and social readaptation of returnees, particularly vulnerable children, including assistance with documentation and livelihoods to promote their integration into society. Iraq reiterated its dedication to continuing repatriation efforts and urged other countries to fulfil their responsibilities in this regard, emphasising cooperation to alleviate the suffering of affected individuals and advocating for the closure of the Al-Haul camp. 

 The delegate of Syria acknowledged the report and expressed approval of the technical visit by the previous Special Rapporteur, hoping for progress in resolving the situation of foreign terrorist fighters and their families in the northeast camps of the Syrian Arab Republic. Syria emphasised the necessity for states to repatriate all their nationals without discrimination, in accordance with international law and respecting Syria's sovereignty, unity, and territorial integrity. The country reaffirmed its readiness to cooperate in this regard, including with humanitarian organisations, while rejecting illegal visits by certain countries to the region. Syria criticised such visits for legitimising separatist militias controlling the camps and illegal detention facilities, which it alleges are supported and empowered by the United States. Syria warned against partial solutions like expanding these facilities or revoking citizenship, stating that such actions would only prolong the issue, exacerbate its complexity, and violate international law.

The representative of the United States expressed gratitude to Special Rapporteur Saul for the insightful report and looks forward to collaborative efforts in advancing the critical mandate. Affirming its commitment to promoting and protecting human rights while countering terrorism, the USA voiced deep concern regarding potential human rights violations when counterterrorism efforts target extremism rather than violent extremism or incitement to violence, risking the erosion of fundamental freedoms such as freedom of expression and religion. Emphasising the importance of whole-of-society, gender-responsive approaches, the USA advocated for women's inclusion in decision-making processes related to prevention, mitigation, and response to terrorism. Additionally, the USA underscored the necessity of effectively disengaging, rehabilitating, reintegrating, and, where appropriate, prosecuting women involved in terrorist activities. Notably, the US government is actively working to transfer eligible detainees out of the Guantanamo facility, with 10 successful transfers made during the current administration. Seeking guidance from the Special Rapporteur, the USA sought to explore collaborative strategies to promote and protect the rights of women and girls globally while countering terrorism and violent extremism.

The delegate of Russia extended congratulations to Mr. Saul on his appointment as Special Rapporteur, urging him to adhere strictly to the principles of impartiality, non-bias, and objectivity in fulfilling his mandate. Russia underlined the importance of objectively assessing the situation at Guantanamo Bay prison, which continues to operate despite international calls for its closure. The country reiterated its support for strengthening international cooperation in counterterrorism efforts under the UN's central coordinating role, emphasising adherence to international law principles such as sovereign equality and non-interference in internal affairs. Russia also stressed the need to maintain the division of labour among different UN bodies and mechanisms, cautioning against the over integration of human rights into all aspects of the organisation's work to prevent overlap between different bodies.

The State of Palestine’s representative speech at the United Nations encapsulated the urgent plea to address grave violations in Palestine, including genocide, apartheid, colonisation, and illegal occupation, which have resulted in the deaths of thousands of civilians, including numerous children, through bombings and starvation tactics. They challenged the conventional understanding of terrorism, questioning whether it applies equally when perpetrated by state actors with advanced military technology. State terrorism was vehemently condemned, with a call for all states to designate settlers as terrorists for their actions in terrorising innocent Palestinians and confiscating their land. Furthermore, the representative criticised the colonial power for weaponizing counterterrorism to suppress Palestinian rights and impede justice. An illustrative anecdote recounted an incident involving the alleged rape of a 13-year-old Palestinian boy by Israeli forces, underscoring the obstruction of justice by the Israeli government despite credible allegations, as highlighted by former United States Department official Josh Paul.

The delegate of Israel at the Human Rights Council session emphasised the urgent need to combat terrorism, citing in particular organisations like Hamas. Israel accused these groups of perpetrating heinous attacks on civilians and emphasised its commitment to upholding international law in its counterterrorism efforts.

Finally, Pakistan's representative statement highlighted the issue of invoking counterterrorism measures to suppress legitimate struggles for self-determination, urging the Special Rapporteur to address this contradiction. The speech underscored concerns about the human rights implications of counterterrorism measures, especially regarding the mass use of biometric data, artificial intelligence, and digital surveillance tools. Pakistan expressed worries about fair trial rights and emphasised the need to protect the legitimate struggles of peoples under foreign occupation to exercise their right to self-determination. Pakistan expressed its appreciation for the Special Rapporteur's vision and priorities, particularly in addressing new technologies in counterterrorism efforts. Concerns were raised regarding the human rights impact of biometric data, artificial intelligence, and digital surveillance tools, underlining the need for normative developments in this area.

NGOS and civil society organisations

During the Human Rights Council session on counter-terrorism, a range of concerns was voiced by National Human Rights Institutions and Non-Governmental Organisations. These entities highlighted the critical importance of upholding human rights principles in the context of counterterrorism measures. Issues raised included the misuse of counterterrorism laws to curtail freedoms such as freedom of expression and peaceful assembly, concerns about surveillance and infiltration targeting specific groups, and the potential for oppressive laws to stifle dissent and activism. Additionally, there were calls for greater transparency, accountability, and adherence to international human rights standards in the implementation of counterterrorism measures, particularly regarding the use of technology and the protection of privacy rights. These interventions collectively underscored the imperative of ensuring that counterterrorism efforts are conducted within a framework that respects and protects fundamental human rights.

Concluding remarks

In his concluding remarks, Special Rapporteur Ben Saul emphasised the imperative of maintaining a balanced approach in counter-terrorism efforts, one that upheld human rights while effectively countering terrorist threats. He highlighted the persistent challenges posed by the misuse of counter-terrorism measures, which not only infringed upon the rights of suspected individuals but also jeopardised the freedoms of innocent individuals. Saul stressed the need for a concerted effort to address the root causes of terrorism and to ensure respect for human rights as the fundamental basis of counter-terrorism strategies.

Moreover, Saul called attention to the disproportionate focus on repressive measures in international counter-terrorism efforts, urging greater attention to addressing the conditions conducive to the spread of terrorism and promoting respect for human rights for all. He warned against the militarisation of counter-terrorism efforts and the denial of contributing factors to violence, emphasising the importance of protecting human rights even in the face of distressing violence.

Saul concluded by urging all states to move beyond rhetorical commitments to human rights and to prioritise human rights in all counter-terrorism activities. He emphasised the importance of combating impunity and ensuring accountability for violations of international law, asserting that protecting human rights distinguished responsible states from terrorist offenders. Saul's concluding remarks underscored the critical importance of integrating human rights considerations into counter-terrorism efforts to ensure their effectiveness and legitimacy.

Position of Geneva International Centre for Justice

Geneva International Centre for Justice (GICJ) strongly advocates for a global ban on lethal autonomous weapons systems and urges a strict policy to halt the transfer of such technologies to states with a track record of human rights violations. Additionally, we call for an immediate moratorium on the transfer of surveillance technology and the establishment of a comprehensive global regulatory framework governing its usage. GICJ underscores the critical importance of international collaboration in addressing the human rights challenges stemming from emerging technologies within the realms of counter-terrorism and extremism.

Furthermore, we urge the international community to prioritise efforts to combat terrorist activities that obstruct the realisation of human rights. All forms of terrorism pose a grave threat to peace and security, undermining global stability and directly infringing upon the freedoms and rights of individuals. In combating these threats, it is imperative that states uphold human dignity and ensure that individuals detained under counter-terrorism measures are treated fairly and in accordance with international law. GICJ emphasises the absolute necessity for states to guarantee the protection of fundamental rights at all times, without exception.

Moreover, GICJ vehemently condemns all acts of terrorism as unjustifiable and expresses profound concern over violations of human rights and fundamental freedoms. We call upon governments to undertake comprehensive measures to understand the root causes of terrorist attacks and to provide robust support to victims in the aftermath of such atrocities. It is imperative for nations to adopt a global rule of law approach to counter-terrorism that aligns with international human rights, refugee, and humanitarian law.

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