Examining report: The Human rights impact of counter-terrorism and countering (violent) extremism policies and practices on the rights of women, girls and the family: A/HRC/46/36
By Hannah Mulhern
As part of the 46th United Nations Human Rights Council, Special Rapporteur on ‘The promotion and protection of Human Rights and fundamental freedoms while countering terrorism’, Fionnuala Ní Aoláin, produced a report focusing on the experience of women, girls and the family. The report centred around the impact of counterterrorism and countering violent extremism policies, discussing the effects globally, regionally and nationally on the direct and indirect consequences of such policies and practices.
This comprehensive report deals with many factors ; gendered effects of broadly defined security laws, specific country issues, effect on women and girls where there are civil society restrictions, the negative effects of gender stereotypes in countering terrorism, and the effect on the family life are all considered. The special rapporteur mentions that although this particular piece of work focuses on women and girls, she also recognises that men and boys are also subject to harmful stereotypes as well as reflecting on the impacts of these policies on lesbian, gay, bisexual, transgender, queer and intersex persons.
The Special Rapporteur warns that the drafting and negotiation of counter terrorism laws, for the most part, are male dominated sectors. As well as this, implementation is also gendered, with women unequally represented at security level, among the police, military etc. Although certain improvements have been made in the form of gender parity strategies in fields such as peacekeeping operations and peace and security decisions making roles, there is still very little information available with regard to the efforts in national intelligence services. However, in saying that, caution was expressed at the notion that gender parity targets would be the sole tool in sufficiently targeting gender discrimination. Where well educated women of ‘elite’ backgrounds are chosen to meet gender quotas, there may still be an overarching lack of representation, where there may be insufficient ethnic, religious or cultural diversity.
Counter – terrorism : The Impacts on women and girls
Women led civil society organisations and women human rights defenders are also mentioned as being adversely affected, where they are increasingly at the receiving ends of threats and intimidation, targeted mostly in conflict and post conflict settings and in countries experiencing terrorism. They are also often targeted for attempting to get to the root causes of conflict. On the flip side, where women are often restricted in mobilising their opposition to terrorism, violence, or conflict, they are also vulnerable to feeling the actual effect of indiscriminate violence, where women are often victims of sexual violence, rape and sexual slavery.
Since 2001, counter terrorism regulation has grown and expanded its reach, leaving no area of life out of bounds. The special Rapporteur believes that the effects of these regulations, now reaching into domestic and private life, are intrusions with resulting burdens felt especially by women, girls and the family. As well as this, the overregulation and visibility of some families in counterterrorism operations are oftentimes directly correlated to their racial, ethnic or religious identities, where it is clear that some communities to do not benefit from the same level of privacy. These operations can have an overall destabilising effect on families, where the right to privacy is not protected. For many women, for example, they are also presumed to be suspect by law enforcement where there is a familial connection to a male person of interest. Where these surveillance operations result in raids, they can be paired with disruptive behaviour, culturally and socially inappropriate behaviour towards women and children, and damage to the home. Where arrests are made, and women are women are detained, those with young children often face particular difficulties in functioning as parents.
Regulation in the form of counter terrorism financing laws are also detrimental to the functioning of women’s rights organisations, where there can be active efforts to curb their freedom of expression due to their advocacy and challenging of traditional gender norms.
Sanction regimes are considered increasingly detrimental, where they are extremely broad, far reaching, and can constitute an exercise of unprecedented supranational power. The special Rapporteur felt that although the UN established an Office of the Ombudsman, there was a lack of adequate and comprehensive legal oversight of sanction regimes. Paired with international regimes, many national legal systems have also adopted sanction procedures within their counter terrorism laws, which is then in turn being used to silence persons reasonably exercising their rights to expression, assembly, religious opinion, and political participation. For men or women listed on sanction blacklist, there are serious impacts on their human rights, interfering with their ability to travel, to secure work, to rent a home, among many others. For women who have a family member listed, they are particularly vulnerable where they may be unable to access their bank accounts or have the ability to work. This in turn leaves women and families in very precarious situations.
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ms. Fionnuala Ní Aoláin, presenting the report to the 46th session of the UN HRC
Counter – terrorism : The Impacts on families
It appears that both the individual and the family are the target of the State’s attention in counter terrorism regulation. The effects of this are felt both directly and indirectly. Direct effects can be seen where a relative of a terrorism suspect is interrogated, or indirectly where there is a cancellation of welfare benefits. The special Rapporteur also raised concerns that the very construction of the family is being shaped and distorted by counter terrorism law and practice. Forced marriage was noted as a challenge, with the likes of Iraq and the Syrian Arab Republic, witnessing its prevalence among armed groups. On the flipside, where these marriages occur willingly, States have then been known to be unwilling to grant them recognition which then excludes them from the entitlements flowing from family status and financial, cultural and social standing that exists after an official marriage.
Administrative measures also effect family members, where they are restricted from leaving their homes, are banned from being in the vicinity of certain persons or have their passports seized. Judicial oversight on these mechanisms are often sparse and can also affect the capacity of family members to access things such as education, work, health etc.
Using children as a tool in counter terrorism
There is also widespread failure to recognise the births of children born to persons associated with terrorist organisations. In the case of ISIL, the birth certs issued under their caliphate have been since considered null and void, leaving children without identity under the law. This has a major domino effect, negatively impacting the human rights of the concerned child, where they are denied nationality, family rights, and likely a myriad of others. Alongside this, practices of stripping and deprivation of citizenship have become more common, which can leave persons vulnerable to being deported or transferred to another jurisdiction. Where this individual is male, the entire family may be vulnerable in instances where they were relying on him to provide income. Removing a family member will also have a very detrimental impact on family or parent-child relationships.
The Special Rapporteur also warned of an apparent infiltration of security focused aims into the sphere of family courts. In certain countries, there has been an increased use of custody and state care orders where, in particular, women have been engaged in actual or perceived extremism. These tools have usually been used in situations where parents were planning to travel to partake in terrorist activity or where the child was displaying some signs of ‘radicalisation.’ Whilst it is undeniably paramount to save a child from psychological harm, the term radicalisation is a loose one and is often open to interpretation, which is concerning.
The report also deals with the concept of “familiarisation of terrorism”, where it there is a tendency to see the mother as a tool in countering and preventing extremism and terrorism, perceived to be blameworthy when her children engage in terrorist acts. Therefore, there is a lot of societal pressure, fuelled by the State and security efforts, for women to be ‘good mothers’ and often have heavy burdens to both recognise and stop this behaviour.
As well as this, the efforts in counterterrorism operations also stretch beyond police and security actors, and also include youth workers, social workers etc. This is as part of an attempt to have a more comprehensive approach to countering terrorism and violent extremism by engaging a range of actors who interact daily with suspects, however, it in turn affects their level of care and increases stigma surrounding their status as security threats.
The special rapporteur did note the positive steps that had been taken to repatriate foreign fighter’s and their families from conflict zones, highlighting the leadership and positive actions by states who have undertaken large-scale returns, including Kazakhstan, the Russian Federation, Tajikistan, Tunisia and Uzbekistan and Kosovo. There is recognition that significant work has been done to address the human rights impact of terrorism and counterterrorism but that more specific work is needed to repair the gaps that exist in national practice aimed at addressing the specific needs of women and girls. This should take the form of reparations and an attempt to gain a better understanding of trauma experienced by women as victims of terrorism and counterterrorism efforts.
Counter-terrorism : Effect on the promotion and protection of human rights
The special rapporteur made it clear that the overall enjoyment of economic, social and cultural rights are inadequately addressed and are indeed understated. She also strongly encouraged states to be aware that there is no legal basis to view the State as the primary “victim of terrorism’. Individuals will always be right holders when discussing human rights, and States are reminded that their primary obligation in respect of the effects of terrorism is defined by their human rights obligation to the victims of terrorism.
Recommendations made within the report
Having laid out the main issues facing women, children and families as a result of counter terrorism measures, the Special Rapporteur listed some recommendations aimed towards States, United Nations Bodies, and Family courts & care professionals.
For states, the Special Rapporteur prioritises the need for an equality centred gendered approach to countering terrorism and preventing violent extremism by making sure women and girls have access to remedies, by amending policy to include a gender perspective (especially in conditions of detention), citizen stripping,sanctions and regulations, and by repatriating, rehabilitating and prosecuting (where necessary) women who have been involved in and affected by terrorist activity. In the context of sanction regimes, the Ombudsman and it’s procedures were considered deficient from a human rights perspective.
For the UN, the Special Rapporteur then recommended a clear and precise definition of gender mainstreaming , taking into account the current definition used by UN Women. The UN ought to be careful and mindful that none of its support operations contribute to the infliction of direct harms on women and girls by counterterrorism and extremism regulation.
For family courts and care professional, cases involving the removal of children to state care on the basis of extremism and radicalisation should be published to ensure transparency and the principle of open justice. Aswell as this, the protection of the family and the rights of the child should be ensured, and any practices such as the use of intelligence information should be ceased where it is interfering with those.
Ultimately, the Special Rapporteur produced a very comprehensive report, covering all angles in considering the risks assosciated with counterterrorism CT/PVE policies and practices. A strong argument has been made to encourage stakeholders at national and international level to move away from the existing approaches, and to instead develop policies and strategies according to a human- rights- and human-development-based approach, in striving for long-term peaceful solutions.