49th Session of the Human Rights Council
28 February - 1st April 2022
Item 3: Interactive Dialogue with the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism
15th of March 2022
By Aimara Pujadas / GICJ
On the 15th of March, the 49th Session of the Human Rights Council hosted an Interactive Dialogue with Ms Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism. The report presented the alarming reality of sustained arbitrary detentions and torture as well as cruel, inhumane and degrading treatment, which have been continuously practiced despite the unequivocal calls made by the United Nations and the human rights bodies to end them.
The debate focused on international concerns over counter-terrorism and countering violent extremism law and policy being used to target, constrain, and attack civil society across the globe. Speakers condemned global acts of torture and shared their concern over extrajudicial transfer and enforced disappearances. The speakers reinforced the idea that countering terrorism is justified, however it should never serve as a reason to violate others human rights. Particular concern was raised over systemic patterns of mass arbitrary detention, secret internments and torture of civilians accused of committing or engaging in acts of terror. It was brought to the Council’s attention that countries, including the United States, were guilty of exacerbating and allowing such practices including Syria and China which set up detention camps in their respective countries. However, delegates contested the veracity of the information gathered in the report, calling upon the Special Rapporteur to be more diligent so as to not spread fake news.
The international community was united in its call to safeguard and prioritise human rights in the process of countering terrorist threats and hold states accountable whilst remaining transparent in their action. More robust legislation was called for, to protect the rights of each country’s citizens.
In April 2005, the Commission on Human Rights, in resolution 2005/80, set up a mandate for the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. This mandate has been extended multiple times, most recently on 22 March 2019, for a further period of three years through resolution 40/16.
According to the initial resolution, this mandate was created to promote and guarantee the protection of human rights and fundamental freedoms by recommending rights-compliant counter-terrorism legislation and policies. The mandate was also set up to offer support, technical assistance, and expertise to States, UN entities, civil society, and other relevant stakeholders. It was conceived to be responsive to the shifting landscape of counter-terrorism and anticipating the long-term needs and strategies of states. In 2010, four special procedure mandate holders produced a unique joint study on global practices of secret detention, which underscored the cross-cutting, profound and extensive human rights violations that were normalised in the name of fighting terrorism. These findings led the Human Rights Council to conduct a follow-up study, which was subsequently presented within the framework of the Council session.
During her opening remarks, Ms Aoláin stated that the report drew a distinct line between torture and extraordinary rendition, which both accompanied the so-called war on terror, and
contemporary practices of mass arbitrary detention and torture. The report identified grave concerns about practices of secret detention with other serious violations of international law directed at the Uighurs and other ethnic groups in the Xinjiang Uighur Autonomous Region. This issue has been the subject of multiple communications by multiple Special Procedure mechanisms and experts of the Human Rights Council, and has been justified by the Chinese government under the banner of “re-education”.
According to the Special Rapporteur, the lack of access, transparency, accountability, and remedies available in society that had enabled and sustained a permissive environment for contemporary detention and harm to individuals.Ms Aoláin referred to her visit to Uzbekistan in November and December 2021 and commended the comprehensive and humane approach taken by governments regarding repatriation, integration, and the acceptance of nationals from conflict zones overseas. The Special Rapporteur commended the advancements made in government provisions to address foreign nationals’ medical, psycho-social, educational, and economic needs. Ms Aoláin praised the level of compassion displayed in the political and legal systems implemented to address the needs of foreign nationals. She emphasised that other countries that had systematically failed to return nationals to their countries of domicile had a great deal to learn from the approach taken in Uzbekistan.
Furthermore, Ms Aoláin addressed the need to systemically reform counter-terrorism laws, to secure the status of those who fled places such as Afghanistan seeking refuge, and to implement a comprehensive review process for all persons convicted of terrorism. She underlined the sustained arbitrary detention, and degrading treatment prevailing after the September 11 events. She stated that counter terrorism discourse, laws and practices had been used to justify the most egregious human rights violations across the globe: “The practice of waterboarding (simulated drowning) was legally justified and brutally carried out in “black sites” controlled by the United States. Detainees were placed in coffin-like structures for extended periods of time. They were kept in solitary confinement, many for months at a time. They were subjected to anal penetration by objects, actions which amounted to sexual violation and appeared to reach the threshold for rape as set out under the International Criminal Court Statute”.
She made explicit reference to the situation of the 38 remaining Muslim men held in Guantanamo Bay in Cuba, a site that engages in inhumane practices which constitute a violation of international law. The special rapporteur on torture determined that the ongoing conditions in the detention site constitute circumstances that meet the threshold of torture and other cruel and degrading treatment under international law. Ms Aoláin elucidated that she hoped that her report could only include past erroneous human rights practices, however and regrettably, such practices continue to be used by states.
In the ensuing interactive debate, speakers underscored the importance of fighting terrorism while respecting human rights. Delegates also stressed the gender impact of countering terrorism, raising concern over the fact that thousands of women and girls remained detained and subjected to conditions that met the threshold of torture and degrading treatments. Akmal Saidov, Director of the National Human Rights Centre of Uzbekistan and First Deputy Speaker of the Legislative Chamber of the Oliy Majlis Parliament of Uzbekistan, stated that the Special Rapporteur´s country visit was considered an important step in constructive cooperation in building human rights whilst countering terrorism.
The representative for the European Union condemned all forms of torture and ill-treatment in all circumstances and expressed concern over the report´s description of the evolution of practices marked by a lack of adherence to respecting fundamental human rights. The EU also underscored its concern over the transfer of persons who engaged in activities protected under international law including exercising their right to freedom of expression and assembly or participation in public affairs. In this regard, they reiterated that combating terrorism and violent extremism must never serve as a pretext for human rights violations.
Mexico, on behalf of Argentina, Chile, Costa Rica, Honduras, Uruguay and Panama, called for states to respect the principle of non-refoulement and to refrain from transferring persons to their country of origin or to a third State when they are at risk of being subjected to torture or other cruel, inhuman or degrading treatment or punishment. As highlighted by the delegate, it is necessary to guarantee full to any person whose human rights have been violated because of inadequate measures to combat terrorism, impunity and ensuring accountability are indispensable aspects of guarantees of non-repetition.
UN WOMEN highlighted that families of persons detained or who have disappeared, have experienced a violation of the right to family. concerned about the thousands of women and children that remain detained in sites without due process and who are subjected to conditions that meet the threshold of torture, cruel, inhuman and degrading treatment under international law.
The Cuban representative clarified that when referring to the report which mentioned the Guantanamo Bay detention site in Cuba, it refers to U.S. military installations located in a portion of illegally occupied Cuban territory. Therefore the substantive recommendations of the report do not refer to issues for which the Cuban government is responsible.
Speakers condemned acts of torture unconditionally, and shared concerns on extrajudicial transfer and enforced disappearances. Countries with extra territorial detention centres should be held accountable for human rights violations.
The delegates of China, Belarus and Syria noted that some references to specific countries in her report singled out activities that were not carried out in the context of countering terrorism and regretted that this mistake had been made. They denounced what they called a politicised campaign orchestrated by western countries and stated that until the present day, not a single European country participating in the practice of secret CIA prisons, had respected human rights.
The delegate of Venezuela denounced the practice of clandestine detentions by the United States with the support of other hegemonic countries that still maintain illegal jails, where detainees suffer violations of their most basic human rights, without the right to due process. They encouraged the Special Rapporteur not to distribute disinformation and to by certain political forces; an appeal that was joined by other delegations.
Cameroon, which is currently facing internal and external security challenges, including terrorism instigated by Boko Haram, highlighted the fact that terrorism is an increasing obstacle to enjoying political, economic, social and cultural aspects of human rights.
Yemen's representative drew attention to the terrorist attacks undertaken by the Houthi groups against the Yemeni civilians, and who use them as human shields. Schools have been used as warehouses for weapons and government buildings as detention centres as well as roofs being used as vantage points to shoot civilians. Yemen requested the Special Rapporteur monitor and document terrorist acts by the Houthi militia with the objective of classifying them as a terrorist group so that the world can impose more sanctions on the leaders of suchgroups.
Civil society organisations and International non-governmental organisations also noted that men and boys were primarily at risk of wrongful arrest and detention, as a result of policies based on race, skin colour and religious discrimination. Additionally, they acknowledged the obligation to provide adequate remedies to individuals and their families who experienced these violations. Reference was made to Israel, a State that has orchestrated a systematic smear campaign against Palestinian human rights defenders and organisations to intimidate, undermined and delegitimise their work in promoting and defending the Palestinian people. Civil society organisations called for justice and accountability regarding Israeli crimes, including Israel’s actions to be labelled as a crime of apartheid.
The Special Rapporteur underscored that impunity should not be permitted in acts of terror. The consistent trend regarding the impact of counter-terrorism measures on the freedom of expression needs to be addressed by States. Furthermore, the Draft comprehensive Convention on Terrorism should move past the stalemate it was in and be concluded, as without it the fight against terrorism is disadvantaged. The Special Rapporteur emphasised that the Council should and will continue to support accountability, seek transparency, and maintain a zero-tolerance policy for the violation of human rights in the context of counter-terrorism. Combating terrorism must never serve as a pretext for human rights violations and any measure taken to counter terrorism must comply with the rule of law and all obligations under international law.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) calls upon governments to pay greater attention to counter terrorist policies that hinder the enjoyment of human rights for all. Terrorism in all its forms is a dangerous threat to peace and security as it undermines the safety of all countries and constitutes a direct attack on freedom and enjoyment of human rights. States implementing policies to combat these threats should consider the prevailing need to respect human dignity and ensure fair and humane treatment of those detained under the framework of counterterrorist actions, and according to international law and human rights standards. As it was clearly stated by all delegations during this meeting, a violation of the law does not justify the violation of human rights and a crime does not justify a crime.
Persons transferred from black sites and from Guantanamo Bay to third countries also continue to live in legal limbo – lacking remedy, legal status, or rehabilitation in countries of resettlement or countries of origin. The ongoing harm cannot be ignored. All people have the right to mental and physical integrity. Therefore, the fundamental rights of citizens must be guaranteed by all States, regardless of the circumstances. In this sense, we call upon the international community to take further action to enhance accountability, seek transparency and hold a zero-tolerance policy for human rights violations committed in the context of countering terrorism.
Counter terrorism, Human Rights Violations, HRC 49th Regular Session, Interactive Dialogue, International Human Rights Law, International Humanitarian Law, torture prohibition, end torture, human rights Geneva International Centre for Justice, GICJ, Geneva4Justice, Justice