Open Letter on Counter-terrorism laws and civic space

Permanent Missions of UN Member States to the United Nations

Paris-Geneva, 25 May 2021

Excellencies,

The Observatory for the Protection of Human Rights Defenders, a partnership of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), urges UN Member States to urgently step up their action to ensure global counter-terrorism policies do not negatively impact civil society and human rights defenders.

Although human rights were given a central place in the UN Global Counter-Terrorist Strategy (GCTS), human rights organisations have extensively documented the minimisation and under-funding of human rights aspects of the strategy [1]. In addition, civil society and human rights defenders have remained sidelined in an overwhelming majority of processes within the UN Counter-Terrorist Architecture [2]. This situation has led to a crucial lack of concrete actions to ensure the respect, protection, and promotion of human rights in the field of counter-terrorism.

In a global context where civic space is continuously shrinking, counter-terrorist policies worldwide have been used to directly harm civil society and human rights defenders. Under the guise of anti-terrorism, many governments around the world have restricted civic space and developed strategies to crack down on individuals and groups engaged in perceived or actual dissent. While the specific modalities of these policies vary across different countries, attacks are most often directed against independent civil society organisations, human rights defenders, journalists, academics, lawyers, or members of the political opposition.

One of the most common strategies used by governments has been to introduce overly-broad terminology into anti-terrorist legislation in order to attack civil society. These catch-all terms have empowered states to outlaw countless activities, often criminalising legitimate human rights work. Scores of human rights defenders have in turn been arbitrarily detained and accused of belonging to terrorist organisations under vague legal provisions. In Egypt, for example, the 2015 Anti-Terrorist Law’s vague terminology [3] has allowed the government to determine at its own discretion what activities constitute crimes under the law. Human rights defenders have paid the price for this legislation: many have been subjected to enforced disappearances [4] or arbitrary arrests and detentions [5] solely for their involvement in peaceful human rights work. Some of them have even been added to Egypt’s “terrorist list” and now also face travel bans and asset freezes [6]. Similar tactics have been used in the Philippines, where a new counter-terrorist law that relies on overly-broad terminology and grants disproportionate powers to the government was recently enacted [7]. This is a particularly worrying development given President Duterte’s extremely aggressive rhetoric [8]: he has repeatedly labelled human rights defenders as terrorists and openly incited the population to use violence against them, resulting in dozens of killings [9].

While these two examples reflect common trends in the context of authoritarian regimes, counter-terrorist policies have also had adverse impacts on human rights defenders in democratic countries that have followed similar (albeit softer) blueprints. For example, the EU recently adopted a Directive on the Dissemination of Terrorist Content Online that gives national authorities the power to force online platforms to remove vaguely-defined “terrorist” content within very short notice and without judicial review. Rights groups have expressed concerns over the potential impact these new rules could have on civil society organisations and human rights defenders [10], especially in countries in which freedom of expression is already under attack – sometimes with laws that criminalise the peaceful expression of dissenting or provocative opinions under “glorification” or “apology” of terrorism charges [11] (e.g. in France [12], Spain [13], or Belgium [14]).

In 2017, the adoption of the Counter-Terrorist Directive had already sparked criticism as it enacted a vague definition of “terrorism” into EU law. This previous directive also criminalised acts that may have minimal or no direct link to a violent act of terrorism, such as consulting “terrorist” websites [15]. A similar provision introduced in 2019 in UK law [16] updated the offence of “obtaining information likely to be useful to a terrorist” to cover the mere viewing of material – as opposed to the act of downloading such content that was criminalised before. As pointed out by the UN Special Rapporteur (UNSR) on human rights and counter-terrorism [17], as well as by press freedom organisations [18], provisions that criminalise the viewing of terrorist content online carry heavy risks for human rights, in particular for freedom of information, as they can create a chilling effect (e.g. for investigative journalists who could face prosecution for their legitimate work).

Across the world, many governments have also cited security threats to justify the adoption of far-reaching surveillance laws that seriously threaten human rights. The proliferation of indiscriminate mass surveillance in many states has stripped numerous people of their right to privacy as governments have been granted extensive powers to collect personal data. Targeted surveillance is also an issue – as for example in Austria, where the 2016 Police State Protection Act allowed the Federal Office in charge of Counter-Terrorism to engage in secret surveillance without prior judicial authorisation or sufficient oversight [19]. These laws can easily be used to monitor civil society, such as in the UK where the Investigatory Powers Tribunal revealed that the government had intercepted, accessed and stored communications of Amnesty International [20].

Another worrying trend observed in the past two decades has been the use of counter-terrorist financing laws and policies to crackdown against freedom of association. Many governments have enacted repressive laws that curtail civic space under the pretext of combatting terrorist financing abuse and money laundering (CTF/AML), effectively limiting civil society organisations’ access to funding and to financial services. In Turkey, for example, in violation of freedom of association, a new law allows the President of the Republic to freeze the assets of a human rights organisation for allegedly financing terrorism [21]. Similarly, the new administrative decision issued in February 2021 by the Government of Venezuela places grave restrictions on freedom of association and NGOs’ right to funding, in violation of international human rights standards [22]. These restrictions introduced in the name of countering terrorist financing in different countries have been particularly worrying in the wider context of growing obstacles to civil society’s access to funding. In this regard, it has been concerning to see the replication in several countries of “foreign agents” legislation modelled on the 2012 Russian law [23]. In addition, the dissemination of harmful narratives conflating human rights defenders with terrorism – e.g. by the Israeli government [24] – have created a chilling effect with donors, who have been reluctant to fund the targeted organisations.

Many of the restrictions to civic space described above have been enabled, and sometimes encouraged, by the international community’s stance on counter-terrorism. States have, for example, justified attacks against freedom of association by citing the need to comply with the Financial Action Task Force’s (FATF) guidance [25]. This intergovernmental body issues CTF/AML policy guidelines, such as Best Practice Recommendation 8 that “aims to ensure non-profit organisations are not misused by terrorist organisations” [26]. It calls on governments to establish measures to “protect [non-profit organisations] from terrorist financing abuse”, and singles out three specific risks: terrorist organisations “posing as legitimate entities”, “exploiting legitimate entities as conduits for terrorist financing”, and using non-profit organisations to conceal “the clandestine diversion of funds intended for legitimate purposes” [27]. This recommendation is based on the assumption that the non-profit sector is inherently vulnerable to the risk of terrorist financing abuse – a view that has been challenged by many stakeholders, including counter-terrorism experts [28]. Recommendation 8 also leaves states in charge of identifying non-profit organisations that are vulnerable to terrorist financing abuse, and its interpretative note encourages governments to supervise and monitor the non-profit sector [29]. While Recommendation 8 was revised in 2016 to include language about the need to adopt a “targeted risk-based approach”, many governments have yet to take the necessary steps to get their national legislation and practices in line with the new wording. In addition, Recommendation 8 does not warn about the potential impact CTF/AML measures could have on civil society and human rights defenders, and in fact fails to explicitly reference human rights altogether (a common feature among many UN Counter-Terrorism documents). The FATF’s guidance thereby lends a concerning “veneer of legitimacy” [30] to measures that limit freedom of association and strictly regulate civil society.

The use of overly-broad definitions in counter-terrorist legislation can also be traced back to international policy developments, and in particular to the lack of universally-recognised definition of “terrorism”. Despite the crucial importance they grant to the fight against terrorism, UN Member States have yet to agree on what it is they are fighting. Attempts to reach a universal definition have been made by different UN institutions, but none has managed to wipe out all disagreements [31]. In parallel, however, the UN Security Council has established an obligation for states to act against terrorism [32] – never mind not agreeing on what terrorism is. This situation has left states in charge of drawing their own interpretations of the word, allowing them to continue relying on UN mandates to justify the adoption of repressive domestic legislation [33]. In this regard, the UNSR on human rights and counter-terrorism stated [34] that “the Security Council itself cannot sit back and ignore the obvious implications of its permissive stance regarding state legislation on terrorism”.

In conclusion, it is high time for the international community to take responsibility for the detrimental effect counter-terrorist policies have on civil society. To that end, we urge you to:

• Lead efforts in the context of the UN GCTS review to insert strong language:
◦ recognising the negative impact counter-terrorism laws and policies have had on civic space
, in particular the negative effects on the rights to privacy, freedom of expression, freedom of information and freedom of association and peaceful assembly;
◦ urging all UN Member States to take the necessary steps to reform or repeal their counter-terrorist legislation to ensure it does not negatively impact civil society and human rights defenders; to that end, follow the recommendations of the UNSR on counter-terrorism and human rights [35], in particular:
▪ ensuring definitions of terrorism in national laws are not overly broad and vague;
▪ refraining from criminalising the legitimate expression of opinions;
▪ exempting civil society actors involved in supporting respect for international norms from measures criminalising various forms of support for terrorism;
◦ urging all UN Member States to develop legislative and policy frameworks conductive to safe and enabling environments for civil society and human rights defenders;
endorsing the creation of an independent human rights oversight office for all UN counter-terrorism programming;

• Lead efforts within the FATF, including in the context of the project entitled “Mitigating the Unintended Consequences of FATF Standards” [36], to introduce the necessary safeguards to ensure the task force does not contribute to curtailing civil society, in particular freedom of association; to that end:
◦ amend Recommendation 8 to include an explicit reference to states’ obligation to respect and protect human rights in the context of CTF/AML measures; as well as amend Recommendation 8’s Interpretative Note to remove any reference to the alleged vulnerability to terrorist financing abuse of the non-profit sector as a whole;
◦ request FATF Member States to introduce exemptions from CTF/AML measures for civil society actors involved in supporting respect for international norms;
◦ include an in-depth review of the impact national measures taken for the implementation of FATF guidance have had on civil society and human rights defenders when conducting Mutual Evaluations for specific countries; further request FATF Member States to conduct prior assessments on the impact CTF/AML measures under discussion at national level could have on civil society and human rights defenders;

• Establish a constructive dialogue with civil society and human rights defenders; ensure they are meaningfully involved at all stages of the development and implementation of counter-terrorist policies; to that end:
◦ establish regular formal meetings between civil society and the Counter-Terrorism Committee and its Executive Directorate, as well as between civil society and the Office of Counter-Terrorism, to carry out in-depth discussions on matters related to counter-terrorism at international and national level;
◦ include a specific focus on members of civil society and human rights defenders who engage with UN counter-terrorism institutions into the work of the Assistant Secretary-General for Human Rights’ efforts to prevent and address intimidation and reprisals against those who cooperate with the UN [37];

• Encourage international bodies and institutions involved in counter-terrorism, such as the UN Security Council, the Counter-Terrorism Committee or the Office on Counter-Terrorism, to publicly denounce instances in which their international authority is abused to justify human rights violations;

• Promote the adoption of a universally-recognised definition for terrorism in multilateral fora; to that end, convene a high level conference to generate the necessary political will to finalise negotiations on a Comprehensive Convention on Terrorism, and ensure both the UNSR on counter-terrorism and human rights and civil society and human rights defenders are meaningfully involved in the discussions.

Sincerely,

International Federation for Human Rights (FIDH), in the framework of the Observatory for the Protection of Human Rights Defenders
World Organisation Against Torture (OMCT), in the framework of the Observatory for the Protection of Human Rights Defenders

Contact:
• FIDH: Gisela Castro, gcastro@fidh.org
• OMCT: Delphine Reculeau, dr@omct.org

***
The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

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