Summary

In the present report, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, addresses the interface between international human rights law and international humanitarian law in counter-terrorism contexts. She affirms the interdependent and intersectional nature of the relationship between both legal regimes, which is all the more pronounced in counter-terrorism contexts. She acknowledges the persistent and unequivocal affirmation by the Security Council and other bodies that any counter-terrorism measures must always and fully comply with, inter alia, the overarching norms of international human rights law, international humanitarian law and refugee law. This is a key basis on which the Special Rapporteur makes the recommendations set out in the report. She affirms that counter-terrorism operations and measures are frequently undertaken in the context of non-international armed conflicts in which international humanitarian law applies and which involve non-State armed groups, including actors subject to terrorist designation by the United Nations and its targeted sanctions regime or those included on regional and national terrorist designation lists.

The Special Rapporteur reiterates her concern about the lack of sufficient consideration regarding the interaction between international humanitarian law and the norms and standards relevant to countering terrorism, leading to a troubling conflation of the two. She is likewise deeply concerned that such conflation leads to the weakening of human rights protection in fragile, conflict and post-conflict settings. She makes recommendations to prevent such weakening, which does not serve the interests of justice or security. She underscores that failure to take due account of both international humanitarian law and international human rights law results in counterterrorism practice that fails to protect the most vulnerable, including persons deprived of their liberty, persons with disabilities, older persons, persons in need of medical care, women and children. She sets out the costs of the failure to systematically app ly humanitarian exemptions for activities that are humanitarian and impartial in nature and are absolutely essential for the protection of the most vulnerable persons in society. She makes specific recommendations to augment the due process protections applied in sanctions regimes, thereby ensuring the optimal application of convergent judicial guarantees under both legal regimes. She addresses the application of the principle of equality across both legal regimes and with regard to foreign terrorist fighte rs and other regulatory arenas, providing clear guidance to States on what the import of that principle requires in practice. She applauds the work of humanitarian organizations, including the contributions that many make as guarantors and enablers of civi c space in many of the most fragile and contested areas in the world. She denounces attacks on the integrity, independence and operational capacity of such organizations, whether directly or indirectly, by States through the prism of counter-terrorism rhetoric or regulation, and underscores that the organizations are critical to the protection of humanity and the dignity of the most vulnerable and, thus, to conflict resolution.