A Critical Review of the Global Counter-Terrorism Strategy: Implications for National Policy and Marginalized Groups

Good morning distinguished participants,

I am delighted to participate in today’s forum and I thank the National Union of People's Lawyers and the University of the Philippines Law Center for hosting us.

On today’s 25th anniversary of the terrorist attacks on the United States of America, I pay tribute to the thousands of victims who lost their lives, to their families, and to the communities whose lives were forever changed by those horrific acts of violence. I equally acknowledge the millions of other victims worldwide of terrorist attacks, excessive counter-terrorism responses, and conflicts in the name of countering terrorism.

Terrorist violence causes profound human suffering, and every State has a duty to protect people from it and to uphold the right to life. I welcome that many governments have assisted and protected the victims of terrorism, and provided remedies, reparation and memorialization. Many countries have also strengthened security measures in ways that respect human rights.

Yet, too many governments have adopted unnecessary and disproportionate responses that have seriously undermined human rights, civil society, civic space, democracy, and the rule of law. The worldwide monitoring by UN human rights mechanisms over the past quarter century has exposed the gravest violations of international law in the name of countering terrorism.

Contemporary trends in global counter-terrorism

Despite the world’s professed commitment to respecting human rights while countering terrorism, including under Security Council and General Assembly resolutions and in the Global Counter-Terrorism Strategy, the world has lately plunged into a new dark age of abuses.

First, there is a renewed proliferation of illegal uses of force in the name of countering terrorism, such as recent aggressions against Iran, Syria, and Lebanon. In Venezuela, countering terrorism was also abusively invoked to excuse illegal aggression, the abduction of a head of State alleged to be a cartel boss, and coercive economic intervention and imperialism in Venezuela. In South Asia, failures to suppress cross-border terrorism, and illegal military retaliation by States, have threatened the security of peoples in India, Pakistan and Afghanistan.

Secondly, many of these wars have been marked by a decline in respect for international humanitarian law, including the fundamental rules on distinction and proportionality, humanitarian relief, and the protection of civilians and civilian objects, including humanitarian and medical personnel, journalists, schools, housing, public infrastructure, civilian financial and energy facilities, and even United Nations premises and nuclear facilities.

In North-East Syria, just this year thousands allegedly associated with Da’esh were illegally rendered across borders, without due process or protection against refoulement to unfair trials or the death penalty, after more than six years in arbitrary detention in inhumane conditions.

“Wars on terror” with catastrophic humanitarian consequences have also been enabled by States with influence who fail to use it to ensure respect for international law by others, or worse have assisted violations through arms and munitions, intelligence, or political cover.

There has been a collective failure of the international community to prevent illegal wars or international crimes, and the Middle East has been rapidly becoming the graveyard of international law. The Security Council recently condemned Iran’s illegal retaliation but failed to condemn the aggressors. In Gaza, the Security Council endorsed a peace plan that does not guarantee the minimal requirements of Palestinian self-determination and independence, accountability for atrocities, or reparation for the victims. Impunity for law-breakers has contagiously stoked more law-breaking elsewhere.

Thirdly, a new “war on narco-terrorism” in the Americas has taken hold, with at least 10 states listing cartels or gangs as terrorists, and increasing support among populist States for more militarized responses. A phoney war on the high seas has taken the lives of 230 civilians on boats in almost 70 illegal military strikes. Most States have not protested. In addition to attacking Venezuela to counter terrorism, threat of force have been made against Mexico, Colombia and Cuba.

Ecuador, supported by the US, has authorised “shoot to kill” in a fake armed conflict that its own Constitutional Court has said does not exist. In other Latin American countries, social protest, including indigenous, labour and environmental movements – have been labelled and stigmatized as terrorist, including in Argentina, Ecuador, Peru and Colombia.

Fourthly, new technologies are making ‘old’ methods of harassing civil society cheaper and easier, hollowing out the right to privacy without adequate regulatory control, from spyware and facial recognition software, to border management systems, to artificial intelligence in military targeting, to online content moderation by private companies.

Fifthly, transnational repression is a growing against those falsely accused of terrorism, from journalists to minorities, including threats and attacks, abusive terrorist listings, unfounded extradition requests, forced return of refugees, and digital surveillance and harassment.

Sixthly, the rights of refugees, asylum seekers and migrants have come under renewed attack on the basis of national security claims. Six million refugees, asylum seekers and migrants have been expelled en masse to Afghanistan, from Pakistan and Iran, on spurious security grounds. The US summarily and arbitrarily deported hundreds of alleged narco-terrorists to Latin America, contrary to its obligation of non-refoulement.

In addition to these recent trends, our communications reveal that long-standing patterns of violations continue to often occur, despite decades of rhetorical commitments to human rights. These include:

• Grave violations such as extrajudicial killings, enforced disappearances, and torture;
• Arbitrary arrest and detention and denial of due process and fair trial;
• Unfair trials and excessive penalties, including the unjustified death penalties; and
• Excessive police, intelligence and security powers without adequate safeguards.

Sweeping definitions of ‘terrorism’ and ‘violent extremism’ infringe the principle of legality, are prone to abuse, and lead to violations of many fundamental rights. The lack of an adequate international definition of terrorism remains a major source of rights violations as well as impeding effective counter terrorism cooperation and justice for victims.

Vague and overbroad preparatory terrorism offences unjustifiably criminalise acts with no genuine causal connection to the commission of actual terrorist violence, including punishing legitimate freedom of expression and even giving life-saving humanitarian relief. Speech or action critical of Israel or supportive of Palestine has been particularly targeted by a new wave of glorification offences as well as restrictions on association and assembly.

Administrative measures outside the criminal justice process, from preventive security detention to compulsory “re-education”, are often used where they are not necessary and proportionate and without due process or effective judicial safeguards.

In particular, organisations and individuals are abusively listed as terrorist without due process or judicial safeguards, including movements devoted to human rights, anti-war protest, indigenous rights, prisoners’ rights, or sexual orientation and gender identity.

A growing concern is the punitive listing of individuals as entities as “extremist”, even when not violent, which is a new tool for governments to suppress ideas they do not like. In Russia, the extraordinary number of 830 organisations and 20,813 individuals have been listed as terrorist or extremist, including the Nobel Peace Prize winning human rights group Memorial.

Overbroad counter-terrorism sanctions and terrorist financing and support offences continue to undermine legitimate humanitarian activities, target non-profit organisations, and erode civic space, freedoms of association, assembly and expression, and political rights.

Counter-terrorism laws and states of emergency laws are often weaponized against political opponents, civil society, journalists, human rights defenders, environmental activists, minorities, students and teachers, and even lawyers and judges.

In too many states, these many violations continue to occur because there is a climate of impunity for state perpetrators and their proxies. The international norms and institutions that protect human rights are under relentless attack, including the ICC, UNRWA, HRC. There is an urgent need for stronger independent oversight and accountability mechanisms, and effective remedies, to ensure respect for human rights by the authorities.

There is also a need for States, regional organizations and the United Nations to more meaningfully engage with diverse civil society organizations, who can be invaluable independent “watchdogs” that monitor human rights violations and assist victims to obtain remedies. Their experience and expertise enhance the legitimacy of counter-terrorism, builds public confidence and security cooperation, and makes efforts more effective.

Meanwhile the goods that prevent terrorism spreading – human rights, humanitarian relief, development, and peace-making – have been drastically defunded to buy more weapons. Crucially, many States have also failed to seriously acknowledge, let alone address, the conditions conducive to terrorism, including state violations of human rights, political exclusion and economic marginalization, while impunity for such violations is endemic.

Protecting Human Rights while Countering the Financing of Terrorism

I now wish to focus more on the challenges in implementing international standards to counter terrorist financing in a manner that is both effective and consistent with human rights. The Financial Action Task Force’s (FATF) 2023 revision of Recommendation 8 (R8) and its Interpretive Note was a vital step towards rectifying the perception by too many States that non-profit organizations (NPOs) are “particularly vulnerable” to terrorist financing abuse. A previous revision in 2016 had proved insufficient to prevent harmful over-regulation. FATF now emphasizes that:

• R8 applies only to NPOs within the FATF definition, not the entire non-profit sector, and excludes, for example, trade unions, political parties and credit cooperatives.
• Regulation must be risk-based and proportionate, and not apply indiscriminately to all NPOs. In fact, most NPOs do not pose any terrorist financing risk.
• All countries must periodically reassess which NPOs are at risk.
• Countries must protect NPOs from terrorist financing risks without disrupting or discouraging legitimate activities.

FATF has also made significant efforts to build the capacity of FATF-style regional bodies, to ensure consistency in the application of FATF standards and sensitivity to NPO related issues. Some FATF assessors had themselves misapplied or misinterpreted FATF standards. I wish to acknowledge the progressive leadership of the Mexican presidency of FATF on these issues, which concluded earlier this year, including work on financial inclusion, and look forward to the current UK presidency maintaining attention to these vital concerns.

In my experience as Special Rapporteur, many challenges remain in implementing R8. Firstly, some countries have mistakenly treated all charities and civil society organisations as vulnerable to terrorist financing, rather than particular sectors. In turn this has led to unjustified over-regulation of all NPOs. For example, some countries have imposed on all NPOs obligations relating to registration, accreditation, and licensing, financial and other reporting, auditing, and financial surveillance, monitoring or oversight. Excessive compliance requirements can force NPOs to divert scarce resources away from their legitimate activities, including humanitarian action, peacebuilding, human rights and PVE initiatives.

In fact, terrorist financing standards do not require governments to specifically regulate all NPOs or to create new regulatory mechanisms. Where risk-based oversight is required, countries can use pre-existing general mechanisms, such as the example of the UK Charity Commission, which also avoids stigmatizing at-risk NPOs through any counter-terrorism specific mechanisms, and prevents burdensome duplication of regulatory oversight.

Secondly, even where governments recognize that a risk-based approach is required, in practice there have been instances of risk assessments that are poor quality, out of date, or based on assumptions about risk or vulnerabilities to terrorist financing rather than empirical evidence of it. This had often led to unnecessary and disproportionate regulation. As terrorists use new payment technologies, such as virtual coins and artificial intelligence-driven micro-transactions, I am concerned that a new wave of over-regulation may result if regulators speculatively suppress novel methods without taking an evidence-based approach.

Thirdly, in some countries adverse impacts on NPOs are not unintended consequences, but deliberate, “policy laundering” choices to repress civil society and human rights defenders, freedoms of association and expression, and humanitarian action. Examples include: excessive government monitoring of NPO funds and even staffing; restrictions on foreign funding or foreign influence; intrusive approval requirements for projects; suspension or deregistration of NGOs; burdensome reporting; and centralizing payments through state financial institutions. There have also been campaigns to smear NPOs as terrorist sympathizers. Such harassment and interference in NPOs is entirely unjustified under terrorist financing standards, and also violates the human right to freedom of association, which includes the freedom to fund associations and to freely manage the organization’s own affairs.

Fourthly, government over-regulation, and the complexity of terrorist financing controls, has led banks, financial institutions and donors to pre-emptively “de-risk” from servicing charities and NPOs, particularly those in conflict settings. In practice this has led toaccount closures; refusal of banking services; blocked transactions; and difficulties moving humanitarian funds internationally, with particularly adverse impacts on civilian populations with humanitarian needs. FATF, governments and civil society need to continue to sensitize the private sector about what compliance does and does not require, while private sector actors themselves need to more effectively undertake human rights due diligence based on the United Nations Guiding Principles on Business and Human Rights.

FATF has recently sought to raise greater awareness about problems of financial exclusion, but it is not only related to FATF standards. While there are now permanent humanitarian exemptions to all Security Council counter-terrorism and other sanctions regimes (now reflected in recent amendments to FATF Recommendation 6), there are no similar exemptions required of unilateral sanctions (particularly those of economically powerful western States), terrorist financing offences, and other relevant terrorism offences, such as “material support” for a terrorist organization. The heavy penalties associated with these laws sends powerful signals to the private sector to avoid certain NPO sectors. All terrorism laws should exempt impartial humanitarian activities, as required by international humanitarian law, and as recommended by the International Committee of the Red Cross and my model definition of terrorism presented to the Human Rights Council. Further, where counter-terrorism financing measures are based on vague and overbroad underlying definitions of terrorism, such measures will not be consistent with international law.

Fifthly, many of the trends I have mentioned have contributed to creating a powerful “chilling effect” on charitable and humanitarian activities. Fear of non-compliance and disproportionate penalties – including even dissolution of an organization and imprisonment of office holders – can deter NPOs from working on certain issues or in certain geographic areas, particularly in conflict zones, areas controlled by terrorist groups, or fragile states. Excessive compliance requirements can delay aid delivery or make operations impossible, and ultimately impede humanitarian efforts to protect human rights, including the rights to life, health, water, food, housing, an adequate standard of living, education, and children’s rights.

Sixthly, some countries have not sufficiently engaged with NPOs in relation to risk assessments, including the evidence base, NPO’s substantial self-regulatory efforts, and the design, implementation and review of terrorist financing regulations. Such engagement can reduceunnecessary and disproportionate regulation and unjustified interference in civil society, human rights and humanitarian work, and cooperatively increase the effectiveness and legitimacy of justified compliance measures. Governments have much to learn from the experience, expertise and capacities of civil society organizations, who often work closely with communities and can build trust with them. In this respect, it is also vital to ensure that, as human rights law requires, there is a right to effective remedies and accountability for unjustified interferences in NPO activity, including cessation of interference and compensation, before an independent body such as a court affording due process.

Looking ahead, a positive development is FATF’s creation last year of its Unintended Consequences procedure, to address situations where countries misapply FATF standards in ways that unduly restrict legitimate civil society activity, outside the usual lengthy periods between mutual evaluation cycles. Concerns may be raised by FATF member states; FATF-style regional body members; the International Monetary Fund; and the World Bank. Regrettably, proposals to allow the Special Rapporteur and civil society organizations to trigger the procedures. However, once triggered, the FATF Secretariat can gather information from civil society and NPO stakeholders.

The FATF then assesses whether there is sufficient evidence of an unintended consequence arising from misapplication of the standards. If so, it may adopt escalating responses, including: (1) requesting the country to report on corrective measures; (2) requiring action through the mutual evaluation follow-up process; (3) public statements; (4) enhanced compliance measures in more serious cases; and (5) referral to a regional body where appropriate. I encourage States to use the mechanism to strengthen human rights protection.

I applaud the hard work of civil society organizations in raising awareness across the continent about abuses and unintended consequences of the implementation of FATF and other terrorist financing standards. At the international level things have been moving in the right direction. However, much work remains to be done to ensure national implementation is consistent with international standards, and that governments do unjustifiably restrict NPOs and civil society in the name of international counter-terrorism standards.

Beyond the ninth review of the Global Counter-Terrorism Strategy

I wish to conclude by looking to the future direction of global counter-terrorism policy. The technical rollover in July 2026 of the eighth review resolution from 2023 as the ninth review resolution of the Global Counter-Terrorism Strategy positively prevented backsliding on existing commitments to human rights, gender and civil society. While it was also a missed opportunity to progressively develop those commitments, the present political climate regrettably did not allow this. Although consensus was broken, only three isolated States voted against the resolution, indicating that the overwhelming majority of States remains committed to the Strategy’s emphasis on a balanced four pillar approach.

Of course, in practice, implementation of a balanced approach has long fallen short. I wish to suggest what a balanced implementation of the four pillars of the Strategy should look like, as well as how the Strategy itself could promote greater balance. I encourage States to:

1. Rebalance the UN counter-terrorism budget by proportionately funding Pillars I (addressing conditions conducive to terrorism) and IV (human rights and the rule of law). These pillars remain neglected compared to the focus on the repressive law enforcement Pillars II and III of the Strategy. The conditions conducive to terrorism are essentially human rights violations, from poverty to political exclusion to other State violations. The most effective counter-terrorism approaches aim to expand human development and life opportunities. The international community must urgently reverse the deep and counter-productive cuts to aid, development and peace operations that prevent terrorism.

2. Mainstream human rights in programming across all four pillars – starting with consistent, rigorous human rights due diligence assessments by States and the UN during the design, implementation and monitoring of all counter-terrorism and preventing/countering violent extremism (PCVE) activities, not limited to the security sector as under previous UN policy. The UN should model best practice, not a minimal compliance approach. There are many areas of UN counter-terrorism practice that raise human rights and related risks for reputation and public confidence, including in relation to memoranda of understanding, drafting of legislation, policies and strategies, public-private partnerships, PCVE and technology projects, and in relation to financial intelligence and traveller information. Measurable human rights and gender benchmarks and conditionalities should be built into activities. The UN and donors should refrain from providing assistance which would enable States with demonstratively abusive human rights records to intensify violations.

3. Strengthen attention to human rights in some key areas that were not addressed adequately in the eighth or ninth reviews: new technologies, migrants and refugees, PCVE, incitement, administrative measures, terrorist financing measures, military operations, gender, and children’s rights. One priority must be to exempt impartial humanitarian activities not only from Security Council sanctions, but from all unilateral sanctions, terrorist financing laws and terrorist offences like financing and material support. Another priority is to stress the need to avoid over-regulation of non-profit organizations, prevent private sector de-risking, and ensure a risk-based, proportionate approach to terrorist financing.

4. Pursue a more balanced approach by giving equal attention to the victims of State violations while countering terrorism, who receive little attention in the Strategy or eighth or ninth Review compared to victims of terrorism. A balanced approach would reject impunity and prioritise effective remedies, and stronger accountability action by the Security Council.

5. Strengthen internal UN human rights resourcing and oversight, even within the existing (shrinking) resource envelope. There are only a handful of dedicated human rights and gender staff in the UN Office of Counter-Terrorism and the Counter-Terrorism Committee’s Executive Directorate, and even fewer in the Officer of the High Commissioner for Human Rights (OHCHR) the mandate of the Special Rapporteur, and the Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee. The UN liquidity crisis is undermining even these limited capacities. There is also a need to strengthen human rights and gender staff and resources in other UN entities under the Compact, particularly the key protection mandates. The UN cannot recentre human rights by itself, since it is hostage to donor preferences, which do not favour Pillars I and IV. States should increase regular budget funding of UN counter-terrorism, to reduce the neglect of human rights stemming from extrabudgetary donor preferences and ensure the UN can pursue a balanced approach. Even in a world of reduced funding, it is still possible to increase the marginal level of human rights funding.

6. Establish external oversight of UN counter-terrorism activities. My mandate and civil society have long called for an independent and sufficiently empowered and funded human rights oversight office to monitor and evaluate UN counter-terrorism activities, to oversee human rights compliance, gender responsiveness, civil society engagement, transparency and accountability. The UN should practice what it preaches on accountability. Existing processes, including ad hoc Office of Internal Oversight Services evaluations and self-reporting by UN entities and through the Global Compact and the unified results framework are insufficient. An oversight mechanism could be a new body or, more realistically, augment an existing mandate. It could review the UN’s consistency with human rights in counter-terrorism, including the conduct of due diligence, policy development and standard setting, design and implementation of programmes, and civil society engagement, as well as handling complaints. Existing monitoring by the Human Rights Council, OHCHR and the Special Rapporteur must also be adequately supported, as must the sanctions Ombudsperson. Human rights mechanisms have been rightly crying poor for decades, to no avail, despite hundreds of millions of dollars being poured into UN counter-terrorism.

7. Institutionalize timely and meaningful consultation with diverse civil society, on international policy through to country level programmes, along with transparent information flows about counter-terrorism to enable effective consultation. Civil society must also be protected from domestic reprisals and transnational repression, including through the abuse of counter-terrorism measures.

8. Define terrorism, since many violations flow from the absence of a right-respecting international definition. My report to the Human Rights Council in March this year (A/HRC/61/52) provides a model definition that can be used at the national level as well as to assist in finalizing the United Nations draft comprehensive convention.

Conclusion

These are hard times for human rights, when even the pretence of respect for international law has been stripped away. Selectivity and double standards in enforcing international law erode public confidence in the credibility and legitimacy of international law and encourage a turn from law to violence, raw power and subjective morality or politics.

Yet, I am optimistic. International law has been resilient for centuries and will survive today’s authoritarians and populists. I encourage all States to raise the political price for violators, to ensure that human rights are taken seriously in countering terrorism.

Protecting human rights in countering terrorism is essential not only to safeguard human dignity. It also enhances security. It forces law enforcement to be disciplined by acting only where necessary and proportionate, thus also preserving scarce resources. It ensures the integrity of criminal trials and so serves justice for victims. It encourages communities to cooperate with the authorities. It prevents rights violations becoming grievances which fuel terrorism. And it increases the confidence of other States to cooperate. It makes us all safer.

Thank you.