Background

This thematic study aims to study the interface between human rights and international humanitarian law in counter-terrorism contexts. The Special Rapporteur notes the high cross over between the application of certain fundamental human rights norms in the context of human rights compliant counter-terrorism measures and certain fundamental norms of international humanitarian law. The report will explore the effects at both national and international levels of counter-terrorism legislation, and well as the interplay between General Assembly resolutions, Security Council resolutions with relevant treaty as customary law.

As the Special Rapporteur noted in her 2018 Report to the General Assembly (A/73/361) counter-terrorism operations and measures are frequently undertaken in the context of armed conflict where international humanitarian law applies. This reality is illustrated by the number of non-international armed conflicts involving armed groups subject to United Nations terrorist designation and its targeted sanctions regime or included on regional and national terrorist sanctions lists. Against this background, the International Committee of the Red Cross and other stakeholders have warned that the lack of sufficient consideration regarding the interaction between international humanitarian law and the norms and standards relevant to countering terrorism was leading to a troubling conflation of the two. The Special Rapporteur is further concerned that such conflation also leads to the weakening of human rights protection in fragile, conflict and post-conflict settings and believes that further study is warranted to enhance and protect the mutually complementary enforcement of both international humanitarian law and international human rights law.

Objectives of the Report

• To ensure sustained attention to the global, regional and national governance in the area of counter-terrorism as set out in the priorities of the mandate and mandate holder (A/73/361)
• To address additional and pressing dimensions of counter-terrorism governance in the overlaps of the distinct legal regimes of international human rights law, international humanitarian law and (their interplay with) global counter-terrorism regulation.
• To explore how the strong legal framework provided by international humanitarian law regarding terrorism interplays with the scope of counter-terrorism regulation and is consistent with the model definition provided by her mandate,[1] to advance precision and clarity in the scope of counter-terrorism regulation and consistent with the model definition provided by her mandate (E/CN.4/2006/98).

Scope of study and key questions

Stakeholders are invited to address information including but not limited to the following:

• Reflection on the interdependence of human rights and humanitarian law norms in the context of countering terrorism with particular attention to the principle of distinction, detention regimes, protection for those hors de combat/in need of medical care, definitions of terrorism and related offences, and the prohibition of torture.
• Addressing the value and importance of humanitarian exemptions to advancing human rights and humanitarian protection, including of particularly vulnerable groups encompassing but not limited persons in need of medical care, disabled, elderly, pregnant and nursing mothers, displaced persons, asylum and refugee seekers, victims of sexual and gender-based violence and other gross human rights violations, as well as boys and girls.
• Assessing the scope of mandates of UN and other entities engaged in counter-terrorism oversight and enforcement, protection, assistance and capacity-building to maximize the intersectional application of human rights and humanitarian law.
• To understand the relationship of human rights and humanitarian law norms in the application of counter-terrorism based sanctions regimes, with a particular attention to due process and the procedural rights of listed persons.
• Exploring the significance of ‘equality’ of treatment in human rights and humanitarian law regulation, and its implications for counter-terrorism norm development
• Probing the legal implications of Security Council resolutions addressing the phenomenon of foreign terrorist fighters, and women and children associated with such groups on the human rights and humanitarian law obligations of States, and more specifically, the nexus of such resolutions with the material fields of application for both international human rights and humanitarian law.
• Given the commitment of the Special Rapporteur to addressing the role of civil society and civic space in counter-terrorism, gaining a better understanding of the value, role and challenges of humanitarian and human rights organizations and the challenges they experience as a result of counter-terrorism regulation.

[1] Noting that IHL prohibits both specific acts of terrorism committed in armed conflict and a range of other acts committed against the civilian population and civilian objects e.g. Articles – 51.2 of Additional Protocol I and 13.2 of Additional Protocol II.