Counter-Terrorism After 9/11, Episode 2: Counter-Terrorism and Human Rights with Fionnuala Ní Aoláin

Tanya Mehra LL.M, Dr. Fionnuala Ní Aoláin 21 Sep 2021
 

Counter-Terrorism After 9/11 is a podcast series exploring how counter-terrorism has changed in the aftermath of the terrorist attacks on September 11th, 2001.

In our second episode, we speak to Fionnuala Ní Aoláin, United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.

This interview explores critical human rights and global challenges related to counter-terrorism, and how they have changed after 9/11. Interviewing her is Tanya Mehra, a Senior Research Fellow and Programme Lead, Rule of Law Responses to Terrorism at ICCT.

You can listen to Counter-Terrorism After 9/11 using the audio player below or through your favourite podcast player (Spotify, Apple, Google, Breaker, Pocket Casts, RadioPublic). Below is a transcript of the interview, which has been shortened and adapted for publication.

Warning: This transcript/podcast contains material that some viewers may find distressing.


Fionnuala Ní Aoláin

TANYA MEHRA: Welcome, very happy to have you here with us. So my first question would be where were you on 9/11? And what do you recall about that day?

FIONNUALA NÍ AOLÁIN: I was in a maternity hospital; I had just given birth to my first son and he was five days old. I had taught and lived in New York for many years and I do recall, waking up that morning with a very small baby in my arms and thinking that the world had just changed, absolutely. We had many friends in New York, and my sister lived not far from the Twin Towers. So we were extraordinarily anxious about those that we knew. All life was in my arms and all life was being destroyed at the same time. So it was a very, very vivid memory for me.

MEHRA: I never knew this Fionnuala. This certainly gives a different take on what has happened on that day. While you are entering motherhood, lives have been destroyed on the other side of the country. So, how did 9/11 impact your professional career?

NÍ AOLÁIN: I think many may know I spent much of my life in Belfast, Northern Ireland. Terrorism, counter-terrorism, armed conflict, and the challenges of protecting rights were nothing new. So oddly enough, I would not say that 9/11 changed my path. What 9/11 did was it brought so much of the experience that I had for 20 years of living and working in Belfast as a lawyer through the conflict, and really made a set of skills and knowledges that most people thought were pretty irrelevant, or at least only relevant to very narrow parts of the world, brought that set of skills to greater relevance, and prominence globally. So 9/11 was the catapulting of taking things that I had done locally and domestically in terms of protecting rights in the context of conflict, and bringing those into a different international global arena.

MEHRA: The terrorist attacks of 9/11 demonstrated how vulnerable civilians are. As a result, the international community was determined to fight terrorism in all its forms and the War on Terror was born. It has led to a proliferation of legislation, policies and practices to counter-terrorism. Clearly, terrorism has an impact on human rights and the rule of law, it directly impacts the right to life. But how have counter-terrorism measures impacted human rights since 9/11?

NÍ AOLÁIN: Counter-terrorism measures taken since 9/11 have had a catastrophic effect on human rights. We shouldn’t forget that after 9/11, it was made clear by the then US President George Bush II, in his infamous phrasing that you’re either with us or against us. It was made clear by the Counter-Terrorism Committee, newly established in the weeks following 9/11 in New York, that counter-terrorism was a human rights free zone. Human rights was neither welcomed nor wanted in counter-terrorism. And that shift, that profound shift, that normative shift, has been devastating for human rights around the globe.

More than that, in the same breath, we know now, we didn’t know it then, but the United States was embarking on a road of using systematic torture, rendition, extrajudicial execution, and arbitrary detention as the day-to-day modality of addressing the so called ‘War on Terror’. And the effects of that have been felt not only in the places where the United States has exercised that kind of lawless practice, maybe rule by law, it is not rule of law. The Torture Memos, for example, were used to legalise the utterly illegal at that time. And the third thing that happened in this period was that we saw the growth of a global counter-terrorism architecture, its nascent development through the Counter-Terrorism Committee through to the establishment of UNCTED [The United Nations Counter-Terrorism Executive Directorate]. And then thereafter the establishment of the CTITF [Counter-Terrorism Implementation Task Force], again in their initial inception, largely human rights free zones.

I would close by just saying that the effects of twenty years of counter-terrorism have been really the marginalization of human rights. But more than that, the idea that you can target people engaged in human rights and law abiding practices, and call them terrorists, and not be called out in any way, which is why we see the global targeting of human rights defenders, women human rights defenders, eco warriors, women’s rights activists, those who simply disagree with their governments, being called terrorists, with absolutely no accountability for that misuse of the global counter-terrorism framework.

MEHRA: Just to follow up on your remark on human rights – we’ve often heard the phrase, balancing human rights and counter-terrorism, as if these are at odds with each other. One also hears that counter-terrorism measures can be effective, even if they do not comply to the international human rights obligations, as if they are separate. How do you feel about that?

NÍ AOLÁIN: There is zero evidence to support it empirically. I think what we know, let’s take an example of the extraordinary study carried out by UNDP, “Journey to Extremism in Africa” that demonstrates perhaps, in a very clear and unequivocal way, that one of the singular triggers to the mobilization of violence, including terrorism, is human rights abuses by the state. I can tell you from 40 years of living in Belfast, that we know and those of us who have lived in armed conflict,  know the intimate relationship between abusive counter-terrorism which violates human rights, and the perpetuation of a cycle of violence that includes further violence, further terrorism.

We’ve seen this in the global counter-terrorism strategy in recent years, a recognition of the conditions conducive, which include violations of human rights. And in a way, I feel sorry for those who make those arguments, because not only are they doing abusive human rights, violating dignity and depriving actions, but they’re doing terrible security. They’re engaging in acts that are likely to continue to keep us in a perpetual cycle of violence. And they create generation upon generation of new cycles of violence.

MEHRA: You’ve also explained how human rights abuses can be conducive to violence and terrorism. Looking back at two decades of countering terrorism, what is, in your view, the biggest challenge that remains today in countering terrorism?

NÍ AOLÁIN: Well, I would say we have two big challenges. Counter-terrorism, in some ways, has become a meaningless term. It’s everything and nothing. If we look as my mandate does, at the practices of states around the world and we benchmark many states all the time, we review national legislation in periodic and sustained ways. What we see is an epidemic of abuse of counter-terrorism. So the single largest problem facing counter-terrorism is the abuse of counter-terrorism, which makes it ineffective, inadequate, and then continues to perpetuate violence in the places where it is allegedly intended to be operating positively.

Related to that is the growth of counter-terrorism architectures, including at the United Nations, that are eating up everything around it, eating up development, eating up education, eating up health. These are not, and should not be, security-led paradigms or practices. When they become security led, they cease to serve the communities who need those most.

So what we need, twenty years after 9/11, is a serious pruning of an expansive global counter-terrorism architecture that is not working and not delivering. We need to go back to some basics on how we make fragile, complex societies work. And also to fundamentally address the conditions conducive to violence, which includes, in many countries, the acts of counter-terrorism itself.

Photo: Chatham House

MEHRA: We see that after each wave of terrorist attacks, not only after 9/11, but also for example after the wave of attacks in Europe, more legislation is being adopted. We see that countering terrorism laws are moving into the pre-criminal space.  There is a tendency to over-securitize. Are you advocating we should de-securitize the way we approach conflict and terrorism?

NÍ AOLÁIN: There’s a reasonable place for security, I’m not arguing against security. But I think that what we’ve seen happen over the last twenty years is the expansion of security discourses into places where they simply don’t belong. I think what that does is that it fundamentally undermines the security of regulatory spaces such has health and education, and it commodifies them. And those on the ground, those subject to those kinds of practices, are rarely consulted.

If I were to give one piece of advice, which I usually give to security actors, is listen to the people you’re pushing your security measures out on. Go and talk to local communities, it’s not easy to talk to local communities because they don’t trust you. And they have good reason not to trust you. They experience the security that’s projected onto them, the security needs of others, the reassurance needs of others, but never get heard – what their own security needs are, the kinds of securities that would essentially enable and support those communities to thrive and create the conditions in which violence and, and terrorism is not likely to spark and take hold. And, for me, at least, if we took the time to talk to women in most of those societies, we’d learn a lot more than we learn from the men in suits who tend to sit around in New York, talking about how to do security in other people’s countries.

MEHRA: We spoke a lot of the challenges of countering terrorism and the impact on human rights. So, what has the international architecture dealing with terrorism, contributed in the last 20 years?

NÍ AOLÁIN: I think I’m very pessimistic, Tanya. What would I say we’ve contributed? Well I think we’ve seen more legal clarity around certain acts of violence. So for example, countering terrorism finance, we’ve seen greater clarity on issues relating to critical infrastructure. There are areas where I think there’s been a sharpening and understanding of state obligation under international law. In the P/CVE area, I’m just a sceptic, there’s no legally agreed international definition of what is extremism. So states get to call whomever they like an extremist. And from my experience in many countries, that means the person who’s a religious believer, the person who is a minority, the person who is LGBTQI, the woman who is advocating for equal rights, is viewed as an extremist because she or they are arguing for things that power and government simply don’t seem to want to give, even if they’re protected by international law.

When I look at the international architecture, what I see is securitization, but I don’t see security. I think the epitome of the failure of the last 20 years is seen in the events in Afghanistan. If our counter-terrorism frameworks were working, we wouldn’t be where we are today. I’m deeply cynical about the growth of security spaces, both at the UN, regionally and nationally. These do not generally function to serve the communities who have the greatest vulnerabilities to violence. Well, they do precisely the opposite.

So, my view is we need a fundamental rethink. And perhaps the failure in Afghanistan will be the moment of clarity where we might look at what has happened in the last 20 years. And be prepared, instead of self-congratulations, which is the primary motif of counter-terrorism globally, and instead might be prepared to take a long, hard look at where we are, and might be prepared to take a look at the cost of counter-terrorism in the countries that are often its greatest opponents.

MEHRA: So, before I turn to a few questions specifically on the recent events in Afghanistan, I wanted to also ask on the lack of definition you already alluded to. There is a lack of an internationally agreed definition on terrorism, on violent extremism and on national security. Do you consider that this is a problem as we go forward?

NÍ AOLÁIN: This problem of lack of definition, is actually the mother problem, it’s the heart of the structural and normative problems and challenges we have in counter-terrorism. I would distinguish between counter-terrorism and violent extremism or extremism in this space. In terrorism, we have multiple conventions, treaties that define acts of terrorism. Additionally, we have a clear hold into the normative framework of the international law of armed conflict. And we have the model definition that’s proposed by my mandate, which has been used by some states. So terrorism itself as a phenomenon doesn’t lack definition for acts of terrorism. And so from the mandates perspective, we continually urge states, if they want to act within the rule of law, to act within the framework of those acts that are agreed to be acts of terrorism under international law. This means there is an adequate and bounded universe of work on terrorism.

Countering violent extremism, and extremism, is an entirely different category. There is no agreed definition, there’s nothing like a list of acts, a convention. That is the most problematic area of state practice, precisely because even though the global counter-terrorism strategy talks about violent extremism conducive to terrorism, as the legal phenomena, states drop the term “conducive to terrorism’, and what they legislate and regulate for is so-called extremism. And again, my mandate has tracked closely at national level what’s happening in legislation and what we can tell you is that what we see is rife and sustained abuse at the national level.

So is there work to be done? Yes. The reason we don’t have a definition, is precisely because states get to call out those acts that they want as terrorism. They get cover for misuse, they get to call whomever they like a terrorist. And, of course, if we talk about authoritarian states, in particular, this is a boon, because what you have is the legitimacy of the international legal system, all saying, we’re all against terrorism, but it’s like the Emperor’s New Clothes, no one will actually say that the state doing X or Y is naked. And what that does is enable states to have the legitimacy of the international system enabling and supporting their misuse. And it’s long past time that that stopped.

MEHRA: We all have been following the developments in Afghanistan. After 20 years, the US and allied troops have withdrawn and the country is now in the hands of the Taliban. Have the international community failed to prevent and suppress terrorism in Afghanistan?

NÍ AOLÁIN: Afghanistan is an outrage. We have a non-state armed group, whose members many of whom are sitting on designated terrorist lists and associated entities, essentially marching into Kabul, and the world stands on the side-lines and essentially does little. Those of us who’ve watched the Taliban over 20 years, those of us who work on issues related to victims of terrorism, know the Taliban very well. We know exactly in the last six months, what they have done as they have swept through the provinces. UN special procedures, myself included, have consistently said that we believe that serious violations of international law, including international humanitarian law have been committed in Afghanistan by the Taliban.

It’s a chronic, devastating, unforgivable failure. And I wanted to name whom the failure falls on. It doesn’t fall on us, those of us who sit in our comfortable homes in the West. It falls on the women human rights defenders that we have encouraged, the women that we have brought to capitals, to the UN, to the Security Council. We’ve encouraged them to use their voice. We’ve congratulated them to be ambassadors for women’s rights. And now they risk either the ignominy of being held in their homes as hostage indefinitely, or killed for using their voice to reassure us that human rights are alive and well in Afghanistan. It will fall on the minority, ethnic and religious groups who have been consistently targeted by the Taliban in the last years as the talks were going on in Doha. It will fall on artists, on musicians, on human rights defenders, on those who participated in public life, particularly women.

Those are the people who will suffer, from not only our failure by simply not staying in Afghanistan, by walking out with no plan, and leaving everyone to it. But also by our responsibility for what will happen to them by having encouraged and supported them and given them the notion that they were valued, that they were going to be protected.  We all read the 1267 Committee briefing on the Taliban to the Security Council a number of months ago. We know what the security assessment is on the danger of al-Qaeda and other affiliated groups. And,  human rights defenders and actors like myself, understand the Taliban. And we are highly sceptical of the reassurances we hear in Doha, which have little or no relationship to what’s actually happening on the ground.

Photo: UN Geneva

MEHRA: The UN mission in Afghanistan has reported a nearly 50% increase of civilian casualties in the first five months of this year. And since the takeover of the Taliban, the UN has received some credible reports of summary executions of civilians and Afghan security forces who surrendered, house to house searchers and the banning of female journalists from television. Could you address the threat the Taliban poses to the Afghan people and their human rights?

NÍ AOLÁIN: What do we know about the threat the Taliban poses to human rights? There’s the threat of impunity for the acts that they’ve already committed. Let’s be very clear, we know who they target, how they targeted. So, the first casualty of this moment is accountability for victims of terrorism. This idea subscribed to the states who say they care about victims of terrorism, that victims have the right to know what happened, to have accountability and to have remedy is a casualty. And the failure of the Human Rights Council to establish a fact-finding commission, which was the minimal request from the government of Afghanistan,  and human rights experts, is damning for the Human Rights Council. The Human Rights Council should be collectively holding its head in shame this morning at the resolution that was passed on Afghanistan, this first empty of action resolution.

The second thing is who’s going to bear the brunt of harm? Well, we know what has happened to women under the Taliban. I think two things are true simultaneously. We know that the unique interpretation of Sharia law advanced by the Taliban, which does not allow women to exercise any of the range of normal participations that we would consider to be protected by international law for women. Women in Afghanistan risk the reality of living in a state which would be a state of gender apartheid, with all of the consequences that follow for them. For human rights defenders, what do we know they risk? They risk death. They risk arbitrary detention. They risk harm. All of these things are known. But to have the international community, which has spent 20 years talking about the importance of suppressing and preventing terrorism under Chapter Seven, see the Security Council stand on the side-lines, and pretend this is not happening in the sense that they will not create any mechanisms of oversight or accountability, nor even cooperate and coordinate with one another to ensure the safe evacuation of those who would be likely most at risk is again, a moral outrage. I lack of adequate words for what I see in Kabul. But human rights defenders, we talk to them every day. They will not forget this, nor should they.

MEHRA: I believe you said it all, there’s not much to add. But maybe as one final question – What should the international community be doing, not only in countering terrorism, but in protecting the human rights of the Afghan people?

NÍ AOLÁIN: The answer to that is to implement the UN Charter, which protects the right to dignity and equality of women. Make those words actually mean something. Why are people cynical about human rights? Because they watch Afghanistan and they see a deal that’s been cut in Doha, between actors who have killed, maimed and destroyed the lives of hundreds of thousands of people. And the words human rights or women don’t appear, because some states have stitched it up.

We should be standing to make the Charter mean what it says where it means and matters the most, which is Afghanistan. This is the test case for human rights and the test case for counter-terrorism, if counter-terrorism means anything. Because what Afghanistan tells us is that actually, neither human rights nor counter-terrorism are worth the paper they’re written on because what triumphs is state interest and power in its rawest and most ugly form. And so what do we do in the meantime, those of us who are standing with human rights are trying to get people out of Afghanistan, and telling those who stay that we will not forget them. But that’s pretty inadequate right now, it feels inadequate.

Those of us who do human rights are in a Sisyphean struggle, because we push big rocks up mountains and then we watch them roll down again. That is just what’s happened in Afghanistan. A huge rock, which is a rock of people’s lives, has fallen to the bottom of the highest mountain. Now we have to start from scratch and try to protect them again. Stand with them again, do what we can. But that rock feels impossible. But then this is what human rights defenders do. We pick ourselves up, and we start again. And right now, what we’re doing is trying to get people out to safety and reassure those who are there that we will not forget them.

MEHRA: Thank you so much Fionnuala for doing this interview with ICCT and reflecting on what 20 years of countering terrorism has brought us. I also want to express my gratitude to you for sharing your heartfelt and critical thoughts on the situation in Afghanistan.

NÍ AOLÁIN: Thanks.


Dr. Fionnuala Ní Aoláin is the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. She is also a University Regents Professor at the University of Minnesota; holder of the Robina Chair in Law, Public Policy, and Society; and faculty director of the Human Rights Center at the University of Minnesota Law School. She is concurrently a professor of law at the Queen’s University of Belfast, School of Law.

Tanya Mehra LL.M is currently a Senior Research Fellow and Programme Lead (Rule of Law Responses to Terrorism) at ICCT.