For the past few years, the policy focus on counterterrorism has waned in the face of rising threats from great power competition, a global pandemic, and climate change. However, in the wake of the March terrorist attacks in Moscow – as countries across Europe raised their terror alert levels, amid speculation that the war in Gaza could inspire attacks elsewhere and as The Guardian warned a “new wave of terrorism” may be on the horizon – counterterrorism, it seems, is once more coming to the forefront of political and policy debates.
If the past is indeed prologue, then renewed concerns about terrorism may lead to renewed counterterrorism abuses and overreaction. The fact that the Russian authorities seemed to take pride in the acts of torture allegedly inflicted on the individuals arrested after the Crocus City Hall attack is a stark reminder of such abuses. The incident, however, is only an anecdotal example of a much larger and persistent global problem (e.g. here or here). In the midst of these developments, Ben Saul, the recently appointed United Nations’ Special Rapporteur on Counterterrorism and Human Rights released his first report. It provides a timely occasion to reflect on how counterterrorism has evolved in recent years, and what challenges lie ahead.
Saul succeeded Irish scholar and Just Security Executive Editor Fionnuala Ní Aoláin as Special Rapporteur in November 2023, and presented his report to the U.N. Human Rights Council in March. The report reflects on the state of global counterterrorism and outlines what he intends to focus on for the coming years. Overall, the document offers many interesting insights as to Saul’s approach to the mandate, but it mostly paints the picture of a busy term ahead. While committing to maintain continuity with Ní Aoláin’s work – for instance on the impact of counterterrorism on the civic space, on the dangers of mass surveillance, or on the detention of terrorist suspects in Guantanamo and in Northeast Syria, to cite just a few – Saul also revealed he would focus on five new topics: the role of regional and subregional counterterrorism cooperation, the risks stemming from the use of “administrative measures” to restrict individual liberties, the role of non-State actors, as well as that of specialized international bodies in counterterrorism, and the sensitive question of accountability and reparation for large-scale violations of human rights in the name of countering terrorism. As far as his geographical focus is concerned, the report also suggests Saul may turn his attention to west Africa and the Asia-Pacific region. Finally, the question of the lack of adequate funding for his mission is also addressed – an elephant in the room, given the incredibly broad mandate given to him and his ambitious agenda.
The report’s single most important contribution, however, is perhaps to serve as a sobering reminder of the little progress made despite years of advocacy and the urgent need to take the protection of human rights in the fight against terrorism seriously, before the adverse effects of some practices become irreversible.
After adding some necessary context, this post provides a succinct breakdown of the key takeaways from the report, and some reflections on additional emerging concerns and what to expect from Saul’s term in office.
A Challenging Counterterrorism Environment
While, in recent years, terrorism has at times been overshadowed by other policy priorities in the public debate, it arguably remains a major security threat. Surely, large terrorist organizations like al-Qaeda and ISIS have suffered considerable setbacks, and terrorist deaths have decreased recently, after a peak in the mid-2010s. However, attacks have often become deadlier, many terrorist groups continue to thrive amid conflict and instability, and those preaching violence continue to find an audience. In response, global counterterrorism efforts, despite some successes, have generally failed to deliver “value for money.” As former Deputy Director of the CIA Michael Morell observed in 2021: if Osama Bin Laden were alive today, he would probably be “pretty happy” with how strong terrorism stands and how much it has weakened Western States in particular.
In Western nations, what continues to make terrorism a major threat is also that it has changed. Instead of a threat coming primarily from Jihadi groups in the past decades, terrorism has metastasized, growing more diverse and fluid, as governments struggle to adapt. Amid escalating social and political tensions, the threat of far-right domestic terrorism, in particular, has increased dramatically, alongside other anti-institutional movements, as well as “salad-bar” extremism – a metaphor designating a nebulous and volatile mix of different violent ideologies ranging from QAnon and anti-vaxx to the Boogaloo movement, incels, or “Eco-Fascism” – further compounding the persistent threat posed by Jihadi terrorism. Tactics are also evolving, and technological developments – such as the democratization of AI – are potential threat multipliers. To many intelligence services’ admission, these factors make terrorism harder to monitor, predict, and prevent. In parallel, data suggests that political violence – outside the scope of terrorism as such – is also generally on the rise, as well as social unrest, which sometimes blurs the lines between the various levels and types of violence.
Much of the response to this increasingly complex landscape has consisted of expanding and hardening existing policies and tactics rather than developing more innovative approaches. Yet, in addition to their disputed effectiveness, some of these strategies sometimes stretch the law and raise concerns as to their impact on the rule of law, human rights, and even democracy.
Whenever they are hit by terrorist attacks, many nations also continue to display a willingness to opt for rushed and harsh – and often disproportionate – responses, therefore repeating some of the well-known mistakes of the post-9/11 “war on terror.” The most striking recent example being Israel’s deadly military response to the October 7 attacks – which has killed more than 36, 000 people in Gaza, displaced millions, and led to allegations of genocide, which the International Court of Justice found “plausible,” as well as a request for arrest warrants by the Prosecutor of the International Criminal Court.
It is therefore unsurprising that Saul’s report opens with the recognition, as a matter of “deep regret,” that not only have many human rights violations identified by his predecessors over the past 18 years not been remedied, but most of them have, in fact, worsened.
The report goes on to explain how vague definitions of terrorism, sweeping national and international legal frameworks, emergency regimes, excessive sanctions, aggressive criminal justice and law enforcement strategies, and mass surveillance – to cite just a few – continue to cause violations of human rights around the world. The problem does not only affect those suspected of terrorism, Saul notes, but also political opponents, human rights defenders, the media, civil society, minorities, and vulnerable communities, who are the most common collateral victims of overzealous counterterrorism policies.
Still, the fact that Saul even has the platform to voice these concerns is proof that not all hope is lost. For States who sit on the U.N. Human Rights Council to have appointed this outspoken figure – a well-known scholar who has worked on counterterrorism and international law for two decades, written some of the field’s most important books to date, appeared before many courts and international bodies, taught in Sydney and at Oxford, and Harvard, and publicly called out governments in the past – signals a reassuring confirmation of their respect for the position. That being said, the stakes are enormous, and his term could prove even more daunting than that of his predecessors.
What Priorities for the New Special Rapporteur?
At the intersection of expertise, advocacy, and diplomacy, the role of U.N. Special Rapporteur is generally respected, but Saul’s position in particular has become key in the U.N. counterterrorism and human rights architecture, making its mandate-holders influential voices on the world stage. Because there are only so many issues one person can deal with, however, the main question when he took office was that of the priorities – substantive and geographic – Saul would set for his term, which his scoping report unveiled.
Though the work of Special Rapporteur takes place at many levels, one of their most anticipated contributions is often the publication of thematic reports which are presented to the U.N. Human Rights Council and the General Assembly. For his first reports, Saul chose topics that may seem technical, but are of critical importance. He indicated that he would explore:
- the role of regional and subregional counterterrorism organizations and “arrangements”: namely, the formal and informal State-led counterterrorism cooperation initiatives that have proliferated since the 1970s – which will be the topic of the first thematic report he will present to the General Assembly in the fall 2024;
- the use of so-called “administrative measures”: tools that allow governments to take action against suspected terrorists without going through courts, but raise concerns as to respect for the rule of law and human rights and the use of which has grown in recent years;
- the role of non-State actors in counterterrorism – with a specific focus on the private sector, including financial institutions, security, technology, and social media companies, and on civil society organizations that engage in prevention, deradicalization, or rehabilitation activities;
- the role of specialized international bodies: namely. the International Civil Aviation Organization and the International Maritime Organization – a seemingly niche topic, which raises broader questions as to the role of supranational regulatory bodies in counterterrorism;
- accountability and reparation for large-scale violations of human rights resulting from States’ counterterrorism efforts; a lack thereof is known to be conducive to terrorism itself and a major factor in the perpetuation of cycles of violence.
Outside of his thematic reports, Saul said he would continue to further explore themes his predecessor pursued. These include examining the impact of counterterrorism on civil society and on the civic space; the operation of U.N. counterterrorism bodies; the rights of victims of terrorism – a topic which he highlighted in his first side-event as Special Rapporteur; as well as the emerging risks brought about by new technologies – ranging from AI to blockchain, autonomous weapon systems, and biometrics – and their use in counterterrorism operations. Saul already indicated he will publish a position paper on facial recognition.
While not explicitly outlined as a standalone topic, the report also states that Saul could seek to further the mandate’s work on the interplay of counterterrorism and international humanitarian law (IHL) in armed conflict, a consistent cause of concern for years, where challenges remain despite some positive developments – for instance, concerning the protection of humanitarian actors in conflict.
Furthermore, Saul committed to continuing the mandate’s work on the fate of “foreign terrorist fighters” and the thousands of individuals who remain detained in northeast Syria – an issue previously championed by his predecessor – as well as on the situation of current and former detainees of the notorious U.S. detention facility at Guantánamo Bay, Cuba.
Among the topics he may explore, though not mentioned in his report, Saul had previously suggested he could analyze counterterrorism in relation to activities in cyberspace, an area that has seen rapid policy developments over the past months, some of which, such as the United Kingdom’s Online Safety Bill, caused concerns within the human rights community. In line with some of his prior research, Saul had expressed interest in exploring the specific challenges arising in the face of climate change – which may be a good opportunity to address the growing crackdown on climate activists in the name of security and counterterrorism.
Where to Start? A Turn to Africa and the Asia-Pacific Region
Another key prerogative of Special Rapporteurs is to conduct “country visits” to assess and report on specific States’ situations. After his predecessor focused extensively on Central Asia and Europe, Saul has indicated his intention to shift his focus to West Africa in particular – a region widely considered as the new “hotspot” of terrorism. Although he did not mention specific States, and while country visits are contingent upon governments’ invitation, it could be interesting to see the mandate visit prominent States like Mali, Guinea, or Niger – where the terrorist threat is growing but where military coups, questionable governmental strategies, and Russian influence risks escalating violence – as well as less prominent States also grappling with terrorism including Nigeria, Benin, or Togo.
Given his familiarity with the Asia-Pacific region – as the first non-European holder of the mandate – it was also hoped that Saul would explore in greater depth the region’s counterterrorism practices, which his report confirmed, expressing interest in focusing on East, South and Southeast Asia. Here again, however, it remains uncertain which States will consent to welcome him. The Philippines, Myanmar, or even India and China come to mind as major countries of concern, but given these nations’ current leadership it would be surprising to see them agree to a visit – although the precedent of the U.S. consenting to a visit to Guantanamo, even though it took place after many years of discussions, suggests that “unlikely” does not mean “impossible”. Countries that are possibly more inclined to consent to a visit include Indonesia, Thailand, and Sri Lanka – though the latter had already welcomed the Special Rapporteur in 2018.
The report also mentioned the Middle East, where there is no shortage of countries where Saul could spend his time: from Israel and Palestine to Turkey, Lebanon, Egypt, Syria, and Iraq. The situation in Afghanistan – where the Taliban regime’s approach to counterterrorism and potential security cooperation continues to raise many doubts as to the seriousness of its commitment and its willingness to respect human rights – would also prove a strong candidate for the mandate’s attention, though a visit in the short term remains a long shot.
Other Concerning Trends Worth Watching
Outside of the list of issues he set out to focus on, Saul acknowledged many other challenges that stakeholders who had responded to his call for input pointed out: from the impact of widespread discrimination to the continued ambiguity of many counterterrorism legal frameworks, the specific vulnerability of children, persisting and complex gender-related issues, as well as enduring problematic tactics in counterterrorism law enforcement and military operations. Humanitarian and development actors have also noted the continued obstacles they face in carrying out their activities in certain areas or for the benefit of populations suspected of terrorist activity.
While this is already plenty to keep Saul busy, some other issues could be worthy of his attention. Specifically, while terrorism – and abusive counterterrorism – continue to affect most dramatically developing, unstable, or conflict-hit nations in the Global South, recent trends in Western liberal States are a cause for concern.
One of the most glaring examples is the rapid expansion of counterterrorism towards countering “extremism” and “radicalization,” and the confusion that sometimes arises between countering “terrorism” as such and merely protecting States’ “public order.” In addition to even more far-reaching yet vague legal frameworks, this evolution has been accused of enabling the growing securitization of political activism and social movements.
The expansion of counterterrorism, amid escalating polarization, declining trust in institutions, the proliferation of disinformation, and the rise of political figures espousing ideologies once confined to the margins, indeed presents renewed risks of political weaponization of counterterrorism – well-documented in authoritarian regimes, but previously regarded as less likely in Western democracies.
More broadly, the framework, tools, and language of counterterrorism may also present an increasingly tangible threat to democracy itself in a growing number of countries, as evidenced by notable incidents: from Donald Trump threatening to purge security services and use the powers of the federal government to crack down on political opponents, to suspicions that the Hungarian authorities may have used the NSO spyware to monitor journalists, or the French authorities unapologetically resorting to their counterterrorism arsenal against activists and reporters.
In this regard, beyond the most flagrant abuses of counterterrorism, there is something to be said about the broader normalization of counterterrorism rhetoric in the political discourse. The increasing casual use of the language of counterterrorism, especially by State officials, public figures, or media outlets, including the unjustified rhetorical labeling of groups or individuals as “terrorists” – pro-democracy protesters in Hong Kong, opposition journalists in Turkey, anti-racism protesters in the U.S. in 2020, and environmental activists in France in 2022, to name just a few – is known to have major and wide-ranging consequences on the individuals affected, and a chilling effect on the civic space as whole. Yet, it often remains an underestimated issue, though Ni Aolain had previously been among those raising the alarm. The now-common embrace of the “counter-extremism” paradigm proves an even greater slippery slope in this respect.
Positive Momentum and A Challenging Path Forward
Overall, it appears that Saul may face an even broader array of urgent issues than his predecessors did. As a member of the broader U.N. ecosystem, he will also need to account for many other challenges far beyond his control: from the deepening divide between the Global North and the Global South – which is reaching new heights against the background of Israel’s operations Gaza – to the “global backlash” against human rights, and the challenges of operating in a “post-truth” era. Although these factors are certainly not specific to Saul’s mandate, they will likely cause heightened tensions in conversations on counterterrorism.
On a more practical level, Saul has also repeatedly highlighted the severe underfunding of the mandate, even dedicating a whole subsection of the report to it. While a chronic challenge for human rights bodies, it particularly affects U.N. Special Rapporteurs: Saul, who is himself unpaid for the role, is only provided with two full-time staffers, neither of whom are located in New York, where much of the U.N.’s counterterrorism infrastructure and institutions are based. Given the multitude of pressing issues he faces, as well as the fact that his appointment remains, in theory, a part-time commitment, it would be unfortunate if Saul had to dedicate much of his time to fundraising efforts. Yet, the current U.N. liquidity crisis, as well as turbulence within the often generous Open Society Foundation, suggest that getting sufficient funding may prove more difficult than ever – which could ultimately jeopardize Saul’s mission.
That being said, it is worth noting that Saul’s first report seemed generally well-received by States, which largely reaffirmed their support for the mandate. Moreover, while his candid approach and the uncompromising tone of his first report have been welcomed with enthusiasm by human rights organizations, his commitment to approach the mandate in a constructive and solution-oriented manner has also earned him praise from diplomats in Geneva. Let us hope that, more than just a diplomatic honeymoon phase, this momentum persists and helps make Saul’s tenure as successful as possible. Even then, however, as he recently pointed out in his first public engagement as Special Rapporteur, the main challenge will be to turn declarations of good intention into action. The stakes have never been higher.