Counterterrorism and Human Rights (Part I Root Causes, Guantanamo, and Northeast Syria)

More than two decades after the 9/11 attacks, counterterrorism still dominates most security policies and practices around the world, including at the United Nations.

And yet, the problem of terrorism persists around the world – from southwestern Pakistan, to the October 7 Hamas attack on Israel, to the Sahel.

Across the board, nations are failing to address the root causes of extremism. 

What might alternative approaches to counterterrorism look like? 

Perhaps no one is better equipped to consider the impact of counterterrorism on human rights than Fionnuala Ní Aoláin. This is Part 1 of a special two-part conversation. Please join us next week for Fionnuala’s insights into the human rights implications caused by spyware and personal data collection. 

Fionnuala recently completed her tenure as the U.N. Special Rapporteur on Human Rights and Counterterrorism. She was the first U.N. expert to visit the U.S. detention facility at Guantanamo Bay, Cuba, and issued a landmark report on how Guantanamo deprives both the detainees and the 9/11 victims of the justice they all deserve. She assessed the conditions in prisons and camps in northeast Syria that still hold over 50,000 people more than 5 years after the defeat of the Islamic State. She raised awareness of the role of gender in counterterrorism and of the repressive effect of counterterrorism tactics on civil society, and she enumerated the ever-expanding counterterrorism mandate at the U.N. 

Fionnuala is a law professor at the University of Minnesota  and at Queens University School of Law in Belfast, Northern Ireland and an executive editor at Just Security.

Show Notes:  

• Fionnuala Ní Aoláin (@NiAolainF)
• Paras Shah (@pshah518) 
• Viola Gienger (@ViolaGienger)
• Part 2 of our conversation with Fionnuala
• Fionnuala’s Just Security article “Rethinking Counterterrorism” 
• Just Security's Ending Perpetual War Symposium 
• Just Security’s counterterrorism coverage
• Just Security northeast Syria coverage
• Just Security’s Guantanamo coverage
• The U.N. Special Rapporteur on counter-terrorism and human rights’ website (including reports during Fionnuala's term, which ended Oct. 31)
• The Guantánamo Artwork and Testimony of Moath Al-Alwi: Deaf Walls Speak (Alexandra S. Moore and Elizabeth Swanson, Editors)
• Music: “The Parade” by “Hey Pluto!” from Uppbeat: https://uppbeat.io/t/hey-pluto/the-parade (License code: 36B6ODD7Y6ODZ3BX)
• Music: “Moving” by Brock Hewitt from Uppbeat: https://uppbeat.io/t/brock-hewitt-stories-in-sound/moving (License code: JIUYKTT0FITX2S4X)

Transcript

Paras Shah: More than two decades after the 9/11 attacks, counterterrorism continues to dominate most security policies and practices around the world, including at the United Nations. At the same time, counterterrorism has become a cudgel that authoritarian governments wield against their own people or other perceived adversaries. The result is a scourge of human rights abuses, including against civil society activists, journalists, lawyers, religious leaders, and ordinary citizens. And yet, the problem of counterterrorism persists, with devastating consequences around the world. 

Across the board, nations are failing to address the root causes of extremism, from the terrorist attacks in Israel, to southwestern Pakistan, to continued attacks on civilians in the Sahel to India. 

What might alternative approaches to counterterrorism look like? 

This is the Just Security podcast. I’m your host, Paras Shah. Co-hosting with me today is Just Security’s Washington Senior Editor, Viola Gienger. 

Viola Gienger: It's great to be with you, Paras, and with Fionnuala. Looking forward to a robust conversation.

Paras: Perhaps no one is better equipped to consider the impact of counterterrorism on human rights than Fionnuala Ní Aoláin. This is Part 1 of a special two part conversation. Please join us again next week to continue the conversation with Fionnuala as we discuss spyware, data collection, and their impact on human rights around the world.  

Viola: Fionnuala recently completed her tenure as the U.N. Special Rapporteur on Human Rights and Counterterrorism. For nearly six years, she examined global and country counterterrorism practices and how they do or don’t comply with human rights standards. She was the first U.N. expert to visit the U.S. detention facility at Guantanamo Bay, Cuba, and issued a landmark report on how Guantanamo deprives both the detainees and the 9/11 victims of the justice they all deserve. She assessed the conditions in prisons and sprawling camps in northeast Syria that still hold more than 70,000 people, 60 percent of whom are children, more than 5 years after the defeat of the self-proclaimed Islamic State. She raised awareness of the role of gender in counterterrorism and of the repressive effect of counterterrorism tactics on civil society, and she enumerated the ever-expanding counterterrorism mandate at the U.N.

Fionnuala concurrently serves as a law professor at the University of Minnesota and at Queen’s University School of Law in Belfast, Northern Ireland. We’re also privileged to have her as an Executive Editor at Just Security.

Paras: Hi Fionnuala, thanks so much for joining the show. We're so excited to have you and to get your insights on some of the most vexing questions that are facing the world of counterterrorism. 

Fionnuala Ní Aoláin: I'm super glad to be here, so thank you for having me.

Paras: I want to start with a question around the drivers of terrorism, which include poverty, corruption, poor governance. Those are well known, especially in areas where the international community has the least capacity to act in failed states, failing states, ungoverned spaces. It seems like policymakers have yet to really address these root causes. Why is that the case? 

Fionnuala: We think we know, or at least there's some rhetoric around a shared understanding, of what drives collective, communal, sustained, intergenerational violence in many societies. And yet, it turns out that we, in general, I think both in terms of global and national policymaking, generally fail to take the kind of action that will address those things. 

And I think the reasons for that are manifold. One is that actually the drivers of conflict are complex, and they have complex and deep roots in most societies, and there are no quick fixes, meaning that if you're really going to address the drivers of terrorism, you have to actually engage in the long haul. These aren't quick, shiny objects that will be transformative in the short term. There's a real reluctance to make those kinds of long term political and economic investments where the rate of return is actually quite slow in the short term, and it may even be miniscule. And it may not look that sexy. It won't sort of translate into immediate success, big headlines on change. It's incremental, slow, often unseen change that happens at a molecular and local level in society.  

The second, I would say, is that we've had a really enormous expansion of counterterrorism, sort of classic kinetic counterterrorism, over the past two decades, as well as other forms of counterterrorism governance. That really is a bright, shiny object that sort of offers the allure that if you use these kinetic — whether its use of force, like drones, whether it's surveillance technology, and whether it's classifying certain kinds of people, like foreign terrorist fighters, in a way — that these things are going to “fix your terrorism problem.” And I would say that actually, those things have just failed, they've failed miserably. And we don't even know very much about how they work at all, because they're often very non-transparent, shiny objects. 

And the third thing I would say is that to make this shift to looking at these fundamentals, like governance, rule of law, that requires an investment of political and economic energy in things that states have increasingly become wary about investing in, and how do we know that? We know that, because if we look at something like the Sustainable Development Goals, that's a really massive global policy that would in fact try to address some of these drivers of violence — states don't want to pay for it. In fact, they almost don't really want to talk about it in a way that's going to force them to change their regular order of business. So, we have multi layered problems in addressing violence. But mostly, we have a lack of political will. 

Viola: In this recent Just Security article, “Rethinking Counterterrorism” that you wrote, you recommend “downsizing existing counterterrorism institutions,” and “substantially defunding counterterrorism agendas.” And given everything that you just laid out, and the political difficulties of all of this, some do actually fear that some of these measures would lead to increased terrorism worldwide. So how, in the sort of short to medium term, do you think that policymakers, political leaders could address those concerns? 

Fionnuala: So I would start with a different kind of value proposition, because I would say to states, is the money that you are currently spending on counterterrorism actually delivering effective, operative and successful counterterrorism results for you? Is there “less terrorism” because of the way that you're spending your money? 

And one answer to that is, we don't know. And the reason we don't know is because we almost have no M&E on counterterrorism spending, we just don't. We don't, we don't actually bother to find out the correlation in most countries, but certainly at the U.N., on whether the money we spend on counterterrorism actually yields. And I would say, like any other policy area, if you can measure whether policy works, whether it's government policy or U.N. policy on development, how is it that we've had 20 years of essentially benchmark-free, M&E-free, no accountability and oversight on counterterrorism? So I would start with really questioning the presumption that what we have right now delivers us successful counterterrorism. 

But I'd also then build on that argument and say, I fundamentally in the last six years, as Special Rapporteur,have seen precisely the opposite. Namely, I would make the case that the existing, kinetically-focused by and large counterterrorism policies we have have actually yielded us more problems of systemic violence and terrorism in society than less. And the classic example I use in my Just Security article, but also in the piece that drove it in this book, Perpetual War, is Mali, where, frankly, it turns out, we invested an enormous amount of resources and money — and I say, “we” the European Union, the United States, the U.N. — in counterterrorism over the last decade, and look where we are right now. We're in a situation where we've collapsed the democracies by elevating military spending in a number of countries who've just decided they don't need democratic states anymore. And we gave away security assistance to militaries, who were completely unaccountable. And so that's been really bad value for money, actually, on counterterrorism in the Sahel. 

And so I would say to this, to policymakers listening, ask yourself, do you have the data that demonstrates that the money you're spending, whether it's in bilateral aid or direct assistance or into U.N. programming on counterterrorism, do you have any data that shows you that it's actually doing what you think it's doing? And ask yourself the alternative question — has the way we've spent money increased our problem of terrorism globally, rather than decreased? And I think the place we're at right now, is that many policymakers I know actually instinctively know that's true, but are unprepared to take the political consequences of seeing through that response to the logical policy change that's required to amend it.

Paras: Building off that advice to policymakers, is there an issue, or maybe a thematic set of issues, that are under-discussed, that aren't on radars for folks in capitals that should be?

Fionnuala: I tend to think in very nuts and bolts ways about this, like how do we actualize better counterterrorism policy and practice? And I start with rule of law frameworks. I start with legislation. If you're in capital, and you're giving bilateral terrorism assistance to any country, the first place you should be looking, is closely looking at their counterterrorism legal frameworks. And most of them, because I've examined almost all of them globally, are incredibly deficient from a rule of law perspective. They lack legal precision, they lack clarity, more often than not what national counterterrorism legislation in countries like Turkey, Egypt, the Kingdom of Saudi Arabia, China, Mali, Burkina Faso — I could keep going — what those national legal frameworks do is they actually target a whole range of people who have nothing to do with terrorism: civil society, lawyers, journalists, humanitarian actors, and mostly, political opposition who disagree with their governments. That is the use that most countries in the world are making of their national counterterrorism legislation. So if you're a country providing, as for example, the United States, the European Union, providing bilateral assistance to these countries, start with their legal frameworks, and actually mandate that their legal frameworks must be rule of law compliant, consistent at a minimum with international law standards. 

The second thing I would say if you're providing that kind of aid, is you need independent judiciaries. If you're going to apply and support legal assistance to enable the executives in most countries to have more sweeping security power and capacity, the logical corollary there is that you have to have oversight, whether that's independent oversight, but more importantly, you need independent judiciaries who can hold states to the account when they abuse national laws and counterterrorism. And frankly, when I look at these agreements, I don't see any of that. I see very little accountability. 

And then I think the third thing that if I were a policymaker, what I would want to know — because it's about my money, it's my taxpayers’ money that's being spent, to “support” these other states to do counterterrorism — if I'm a state, which says my foreign policy is grounded in the rule of law, I would want to know that my dollars are not being used abusively, that they're not being used to target civil society, and women, human rights defenders, and environmental activists. And I would be putting riders in my bilateral agreement saying, “If you use this kind of money this way, not only are we going to call you out on it, but we're gonna stop giving you money, because this is an abuse of our trust, and it's also an abuse of the compact that we have with our own taxpayers that this money will be well spent.” 

Viola: Those are some really solid recommendations, Fionnuala, thank you. One of the quintessential sort of examples, it seems to me, of how counterterrorism policies have gone hugely off the rails is the example of northeast Syria. And one of your priorities as Special Rapporteur was to document the situation of more than 50,000 people being detained in northeast Syria. You spent six days in scorching summer heat there this summer. Tell us what you saw, and how do you assess the risks of their long term detention? 

Fionnuala: Yeah. So I have to say, as we record, I'm really worried about northeast Syria. And I know that all of our eyes are currently on the Middle East, on Gaza and Israel. But I would caution policymakers and politicians, because as our eyes have shifted, so too have the energies of others shifted to places where we cannot be, or are not fully engaged and present. Northeast Syria is a tinderbox. You have the territorial state, you have the non-state actor, the SDF, but also a range of other designated terrorist groups still operating on that territory, but you also have the United States, you have Russia, you have Iraq, Iran, and you have Turkey, which has seized Syrian territory, and is currently engaged in ongoing armed activities, particularly focused on the SDF. 

And in the middle of all of that mess, you have these prisons and places of detention. And you have, in my estimate, and I believe that the count that we have, the numbers we have ,have been really under counting who's still in those prisons, and my team's estimate was that there are still 70,000 people in those camps. And these are prisons. These are not — we can use words like camp or rehabilitation centers — but nobody's leaving, and there's no due process. None. I mean, there's no legal process. 

And you know, a couple of years ago, on a report, the Human Rights Council, I drew a direct line between what I saw as policies and practices, which the U.S. government, regrettably, was at the forefront of leading, on detention without trial at Guantanamo Bay, Cuba, and the permissive environment that that has created globally for other states or non state armed groups to follow, including in Xinjiang, China, but also in northeast Syria. And nothing good comes of detaining 70,000 people, mostly children, the vast majority of the population is a child population. And I can't even describe to you, to be in the territory, to walk around al-Hol camp, which is literally just a dry, arid desert with thousands of haphazard tents, and children just like walking around with nothing to do. Water is scarce, Turkey has turned off the spigot into northeast Syria. So there's a huge problem of water, food, and the basic requirements to make for a dignified life are completely missing. And so what do we think, for those who really want to say they think about security policy, they think about the next conflict, they try to anticipate and prevent the outbreak of violence? Well, I don't see any prevention in northeast Syria. What I see is the stoking embers of another security crisis that will erupt, because you cannot hold 70,000 people for the rest of their lives in these kinds of conditions without the ultimate result being violence on a large scale.

Viola: So given all of that, one of the things you've talked about — you and others have talked about — is the urgent need of countries to repatriate their citizens, of course, but then there's also in some countries a question of capacity to take them back. How do you see that responsibility, both for causing the situation in that first place and going forward? 

Fionnuala: So this is a complex question. But I'll start by saying the U.S. has generally played a really positive role in the sense that the U.S. has been consistent. It's bringing back its own nationals consistently, charging them as appropriate, and then where there's not a grounds or a reason to charge, letting people be reintegrated into American life, particularly children. And the U.S. has provided extensive assistance to other states to encourage and sometimes require them to bring back their nationals when they haven't been so willing to do the same. 

But I think there's a really broader question here for the international community. And the first follows from the findings in my report, which is that actually the conditions in the camps reach the threshold of core crimes under international law. That means crimes against humanity and war crimes. And you have member states, including the United States, the members of the European Union, who are supporting the SDF, training, equipping, and helping to build the prisons, in which their own nationals — for some European states — are being held, but not being returned. And I think this creates an untenable proximity and responsibility under international law for those states whose nationals they are facilitating the infliction of core crimes upon by the failure of the detaining authority to adhere to the minimum requirements of the Geneva Conventions under common Article 3.

But maybe I close by saying, so we had this Global Coalition against Daesh, and my mandate had a good relationship with the Global Coalition. But I would say, Global Coalition, your work is not done. You have many members in your coalition who think you've defeated Daesh because there was a battle of Baghuz. But actually, you left behind the single largest problem that is likely to re-ignite a conflict, including by designated terrorist groups. So if the Global Coalition against Daesh means anything, it means those in the Coalition must bring back their nationals. Don't talk about being a willing and able member of the Global Coalition Against Daesh and leave your citizens, including mostly children, in these camps. 

And, and I think that's an imperative if there's any relevance to the discussion of what the role of that coalition is now. And I also think for security analysts and security thinkers, like over the horizon thinking, why, you know, we were surprised, I want to say, when we woke up and saw the emergence of the Islamic State in Iraq and Syria. Don't be surprised, because the evidence of what's likely to happen again is sitting in northeast Syria. And so it requires preemptive, human rights based, humanitarian law informed action in northeast Syria to prevent the recurrence of a further grave destabilization of that region. And that, in my view, is the responsibility of the territorial states, of the other states who are on the territory, who, frankly, are not talking to each other and need to talk to each other if we're going to fix this problem, and the Global Coalition.  

Viola: Thank you. That's a really powerful call to action. Fionnuala, one of the most important things that you did, I think, as Special Rapporteur, was really shine a light on the situation of Guantanamo Bay, which is another one of those situations that has sort of slipped under the radar over time, pops up periodically, but not many people are paying that much attention to it anymore, unfortunately. You were the first U.N. expert to visit Guantanamo. Can you tell us a little bit about that, and what is the central takeaway from your visit?  

Fionnuala: At a personal as well as a professional level, that visit will stay with me for the rest of my life. I started that visit actually at the 9/11 Memorial site. My team and I went to New York first. And I went, we were lucky to be led into the memorial early in the morning before any of the visitors get in. We were walked around by the director of the 9/11 Museum. And you know, what really came home to me in that was that it's a graveyard. It remains a site of enormous pain and grief. And, you know, one of my commitments when I started the visit to the United States was a commitment to the 9/11 families, that also, they too have been forgotten, because we trot on the 11th of September every year, and we say how we remember. 

But it turns out that there's no comprehensive federal legislation for victims of terrorism, that the fund that was supposed to ensure that they would be protected into the future is not secure, that many of these families struggle with long term issues of intergenerational loss. And perhaps, I spoke to so many moms who lost their husbands, but actually worry the most about their kids and now in their 20s and their 30s who live with the loss of a parent or a family member in a way that's fundamentally irreparable. So I would like to see us get past the kind of salutation on September 11 and actually commit to ensuring that the lives and dignities of the victims of terrorism are respected through action, ensuring that they are secure in their mental, physical and other health for the decades to come. 

And then, of course, there's the men and, you know, like, I don't have a good vocabulary at all for what it meant to meet with the men I met with. And I know that my team and I prepared meticulously. We, we actually spent a lot of time with psychiatrists and doctors who work with torture victims survivors, because every single man I met was a survivor of torture. And there's an enormous burden when you walk into that room not to do more harm, as much as you're there to witness and to hear what's what they want to tell you.  

And the grief that I experienced in those meetings, the grief and loss for men who have not seen their families, who were brutally tortured. And I think, again, not to lose sight of the Senate torture committee findings of what was done to these men, and the doctors, and the psychologists, and the military personnel, and the lawyers who were complicit and participatory in all of that. And the harm of that stains those who are responsible for it for the rest of their lives. I have said and I will say again, those people — and we know them by name — who engaged, facilitated, ordered, colluded in torture do not rest well, do not sleep well, because the long arm of justice stretches to you. And what's now true is that the men who have been released, many of whom are the most extraordinary advocates for their own rights and their own dignity, and are reaffirming who they are as human beings, and able to articulate, they don't need intermediaries like me or like other organizations, they're speaking out, there writing extraordinary books. There's an amazing book I read this week, one of the artists of Guantanamo, Moath al-Alwi, an extraordinary artist who's still there, he's been cleared for release. And because the U.S. has passed legislation that won't allow him back to Yemen, this extraordinary artist who ranks, I think, if you were outside the prison walls, would be feted as he is in this new book that celebrates his artwork from Palgrave, and these men are speaking for themselves. 

And I would just close by saying, I mean, Guantanamo. I came too late. I came too late. Every man who saw me said, “Why weren't you here when I was tortured? Why were you not here when I was brought here? Why didn't you” – meaning the U.N. — “stop this?” So they know we failed. And we utterly failed, because we didn't prevent the harm. And the harm is ongoing. My visit hasn't stopped the harm. There are still men in Guantanamo who have not been released or transferred. There are men who've never been charged with a crime ,three of them who are the “forever prisoners.” And there are military commissions who failed to meet the basic standards of international law and human rights compliance for due process. So the test of this, my visit, was really important. And I have been really clear that the President and the National Security Council and the Interagency deserves fulsome praise for allowing a Special Rapporteur finally into Guantanamo. But that is nothing. The actual test of my visit will be the implementation of my recommendations. That is the test of whether a visit by a Special Rapporteur made any difference at all to the lives of the victims of terrorism, the lives of the men who remain detained, and the men who left without compensation or acknowledgement.

Viola: That’s so important for America and Americans to hear it and to be reminded of. Thank you. 

Paras: Fionnuala, this has been such an enlightening and important conversation. Thank you for all the work that you did as Special Rapporteur and the work that you will continue to do. You are such a treasure. We're so privileged to have you at Just Security. Thank you again for joining the show. 

Fionnuala: Thank you. 

Paras: Please join us again next week to continue the conversation with Fionnuala as we discuss spyware, data collection, and their impact on human rights around the world. 

This episode was co-hosted by me, Paras Shah and Viola Gienger. It was edited and produced by Tiffany Chang, Michelle Eigenheer, and Clara Apt. Our theme song is “The Parade” by Hey Pluto. 

Special thanks to Fionnuala Ní Aoláin and Brianna Rosen. You can read Just Security’s coverage of counterterrorism, including the Ending Perpetual War Symposium, on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.