Reflecting on the Human Rights Council and Counter-Terrorism

I was very pleased to be invited to speak at the Irish Department of Foreign Affairs and Trade NGO Forum last Friday. The event, which took place in Dublin Castle, involved a wide range of speakers reflecting on the first ten years of the Human Rights Council and on Ireland’s time as a member thereof. In my short remarks, I was asked to consider the extent to which the Council has managed to address emerging issues, and in doing so I reflected especially on counter-terrorism. In 7 minutes, of course, one can hardly be comprehensive, and so the remarks below (which are my speaking notes from the event, though not a strict account of what I said) were necessarily selective and intended to give a general account.

For the past ten years, the HRC has been part of a broad patchwork of international human rights institutions working to identify and address the profound challenges raised and unveiled by the ‘War on Terror’ and broader counter-terrorism regimes and operations. As counter-terrorism has internationalised (with the involvement of the Security Council, for example), and innovated (with the continued adoption of technology-based approaches to security) the importance of the HRC’s ability to consider its implications for rights in an international forum involving all states has been abundantly clear. The value of this can be illustrated by reference to just three areas of attention and activity.

The first is the Council’s commitment to taking a broad and inclusive approach to addressing and understanding the rights-related implications of countering terrorism beyond implications for civil and political rights per se. This approach reflects the basic proposition of indivisible rights, and the reality that social and economic conditions, as well as civil and political ones, require attention if terrorism and counter-terrorism are to be fully understood and addressed. Furthermore, in the mandate of the Special Rapporteur (created by the Commission but renewed in 2010 and 2013 by the Council), there is a particular reference to accounting for the implications of counter-terrorism for gender (paragraph (c)), and the first Special Rapporteur (Prof. Martin Scheinin) was clearly attentive to that, including devoting almost an entire report to gender and counter-terrorism in 2009. Relatedly, the Council has paid attention to socio-economic conditions in assessing the root causes of terrorism and identifying the potential of a rights-based approach to addressing radicalisation, extremism, inter-personal violence, persistent insecurity, economic inequality, and other endemic problems that feed into the causes and manifestations of terrorism. In this, the Council’s holding of, for example, interactive dialogues with mandate holders on terrorism and on extreme poverty is very welcome and clearly chimes with the inter-connectedness recognised in the Sustainable Development Goals, for example.

A second area of note is the attention paid by the Council and its mandate holders to the implications of counter-terrorism for the right to privacy and other rights that flow from the “digital embrace” in contemporary counter-terrorism. The turn towards technology-based solutions to security problems is reflected particularly in the instigation of systems of mass surveillance, attacks on encryption and the principle of net neutrality, and a sometimes patchy commitment to privacy by design in technology research and development. The Special Rapporteur has long been attentive to these trends. As early as 2009, Prof. Scheinin argued that counter-terrorism’s implications for privacy required serious attention, that states should be required to establish legitimate justifications for infringements on privacy, and that the Human Rights Committee should adopt a new general comment on Article 17 of the ICCPR. There is a clear connection between the work of the Special Rapporteur, the interventions of the Special Rapporteur on Freedom of Opinion and Expression, the General Assembly’s 2013 call for reflection on privacy in the digital age, the report of the High Commissioner on the same theme in 2014, and the establishment by the Council of a Special Rapporteur on the Right to Privacy in the Digital Age in 2015.

A third area that illustrates the Council’s ability to address emerging issues is that of targeted killing by unmanned aerial vehicles, otherwise known as drones. During the tenure of the present Special Rapporteur, Ben Emmerson QC, this has been an area of concerted attention. That tenure coincides with the striking expansion of targeted killing by drone by the Obama Administration and its adoption (to a far lesser extent) by the United Kingdom. While the Special Rapporteur on Extra-Judicial Killing has also been attentive to this, Emmerson has paid it particularly tenacious attention. His reports on this issue have starkly illustrated the need for transparency, accountability, enquiries when civilians are killed (as is often the case), and a concerted effort by the international community to agree on the applicable legal standards for the application as appropriate of international human rights and international humanitarian law to drone killings. This work, which has been supported by the Council including through holding panel meetings on the matter, has been hugely influential, being cited in (for example) the 2015 Council of Europe Report on the Need to Uphold Human Rights and International Law in Respect of Drones and Targeted Killings.

Thus, when I turn my mind to the key question I was asked to consider today–whether the HRC has been able to ensure the existing human rights framework can address emerging challenges–and apply it to the counter-terrorism context, I am generally inclined to answer in the affirmative. However, two inter-related points of caution apply. The first relates to the fact that some member states of the Human Rights Council continue to use counter-terrorism law domestically in order to quash dissent, undermine freedom of expression, prevent protest, entrench surveillance, and maintain power. Others are among the most prominent counter-terrorism entrepreneurs, engaged in innovating many of the most challenging technologies and approaches to countering terrorism and arguing for recalibration downwards of vital human rights protections in the name of security. The apparent disconnect between the practices of member states and the activities of the Council per se is clearly undesirable.

The second concern is the heavy reliance on the Special Rapporteur to advance rights work in the context of counter-terrorim in the Council. Not only does such a reliance depend heavily on individuals and thus potentially make the work vulnerable through phenomena such as lack of institutional memory, cult of personality, and variability of resources, but it also means that there are dangers of replication and competition in work across the mandates of different rapporteurs, and that the advances made might be undermined by the appointment (by the member states) in future of ‘weaker’ special rapporteurs, designed to ‘un-tooth’ the mandate.

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