The 11 January marked twenty years since the opening of Guantanamo Bay, the infamous prison in Cuba created after the September 11 attacks and decried by critics and rights activists for allowing detainees to be tortured and held indefinitely outside of normal laws and jurisdictions.
The legacy of this so-called “war on terror” is to have created the conditions in which other places of mass detention have emerged, according to UN special rapporteur Fionnuala Ní Aoláin.
From camps in north-eastern Syria, where thousands are detained without legal processes, to China where detention camps are posing under the guise of “education facilities” – secret detentions and enforced disappearances are still happening every day under the banner countering terrorism.
In 2010, UN experts from four different working groups and special procedures joined forces to produce one of the most comprehensive studies to date on widespread systematic torture, enforced disappearances, arbitrary detention and secret detentions taking place across the world and condemning the wide range of human rights violations committed by countries.
In a follow-up report presented on Wednesday at the Human Rights Council 49th session, Fionnuala Ní Aoláin, the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said 10 years on, these practices are still rife and deplored the “abject failure” by states to implement the recommendations of the 2010 study. She sat down with Geneva Solutions to discuss.
GS News: In 2010, UN experts published a milestone study on secret detentions. What does your follow-up report show?
Fionnuala Ni Aolain: The 2010 report was unusual because it involved… four special procedure mechanisms coming together and identifying each in their collective way the scale of the problem of systematic torture and rendition of persons across borders, and systematic disappearances, arbitrary detention, and secret detentions. The [follow-up] report we’ve just published does a stock-taking and assesses whether or not the recommendations of the special experts were implemented. And possibly the single most depressing thing about that review is that the annex lists every single person who was named in the 2010 report – hundreds of names who were rendered, tortured, or both – and not a single individual received an adequate remedy [for the violation of human rights they experienced]. There was no accountability, no person was ever charged with a crime for any of those acts.
The second part of the follow-up report focuses on what that culture of impunity enabled. And what I find is that the culture of impunity, fostered and enabled by the “war on terror” as it was called essentially has created and enabled the conditions in which other places of mass detention have emerged. The report focuses on two of them: Xinjiang, China, and the situation in [in detention camps] in northeast Syria.
One of the observations you make is that ‘secret’ detentions have evolved in the past two decades to encompass more complex forms of "formally lawful" or legalised transfer. Can you explain?
In the evolution that we've seen…dark-of-night arrivals into places like Poland and Lithuania and other countries that were accepting these rendition flights stopped because the global heat, if you want, on that kind of rendition was simply too high. It just became intolerable and unacceptable for states who were cooperating in enabling torture and rendition to continue to do it. But there's been this transition into this ‘lawful transfer’. These are diplomatic assurances, [for example], where one state offers an assurance to another state that they will not torture the person who's transferred into their custody.
But as the report makes clear, if you have to provide an assurance that you're not going to do that, it tells you that there's something fundamentally dysfunctional about the legal system that's producing the assurance – and there's a fundamental question about the trustworthiness of the assurance if it happens. And what we know in practice is that so many of those assurances are not worth the paper they are written on. People have had the worst kinds of practices meted out to them under the cover of diplomatic assurance. And there have been no consequences for states in breaking those assurances.
One of the issues you raise in the report is the lack of a globally agreed definition on terrorism or acts of terrorism. Why has it been so complex to agree upon a definition?
Part of what happened is that 9/11 spawned this culture where everybody agree that terrorism was a bad thing but nobody ever defined it. So, states understood that what they could do under the guise of countering terrorism was actually extremely wide. And so in fact, there was an extraordinarily fast learning-curve around the ambiguity of the term, the lack of an agreed definition, and the unwillingness of states to call one another out on their abuse of terrorism. And that's one of the fundamental problems. Even if other states observed that there was an abuse of the language, they were patently unprepared to call out their neighbours, their fellow regional group members, and other states.
What we see in practice is the systemic abuse of counter-terrorism across the globe. We see it in multiple countries. Over 67 per cent of all the communications the mandate has sent since 2005 have involved the use of a counter-terrorism measure against a civil society actor. So this tells you that actually, they're doing really bad counterterrorism.
We have to understand that, in fact, there's a structural endemic problem. And in many countries, states’ security is governed by counter-terrorism. The example I often use is the Kingdom of Saudi Arabia, when women's rights activist Loujain al-Hathloul was jailed on terrorism charges and processed through a Special Criminal Court. So this shows terrorism being everything and nothing.
How has the definition of terrorism changed?
The permutations of terrorism are endless and we have moved away increasingly away from acts of terrorism, to terrorism as kind of an opaque set of both actual behaviours but also preemptive behaviours. So we're now more engaged in preemptive regulation – something that has not yet happened. The only way to deal with it is to do, first, what the mandate and civil society have been doing for two decades, which is we try to name what we see as the abuse. If you’re locking up women drivers, if you're locking up artists, if you're charging hundreds of lawyers, as we've seen in countries with terrorism, if you're designating every single civil society organisation in the state of Palestine as a terrorist organisation, then it is absolutely clear that it is neither necessary, proportionate or non-discriminatory. So that's where I think we're stuck. I think the struggle is that all states are in the business of expanding terrorism. A few states are highly principled but they're very small in number.
In your annual report presented to the General Assembly in October last year, you said that efforts to improve counter- terrorism measures are in fact damaging human rights. Would you say that counterterrorism is incompatible with the respect of human rights?
Security is a human right. It's found in the Universal Declaration on Human Rights. The most fundamental right that enables us to have other rights is the right to be secure. So I don't think they're incompatible and I don't think the drafters of the Universal Declaration thought they were incompatible. I grew up in Northern Ireland in a society that was, in many ways, defined for decades by counterterrorism law. The problem is that expansive counterterrorism law, which is what we have, is imprecise – and vague counterterrorism law is fundamentally incompatible with the rule of law.
The fundamental idea contained in the rule of law is that if you are to be charged with an offence by the state, you know precisely what acts you engaged in that are likely to make you subject to the course of power of the state. And the fundamental problem with terrorism is that it really, in so many countries, kind of injures the concept of the rule of law, because it's not precise. A reasonable individual could not know what kind of actions they would engage in would implicate the use of a state or measure against them. So I don't think it's incompatible but unfortunately, we have very few examples of good practice.
One of the key examples you highlight in your report are the camps in northeast Syria where thousands of people – the majority women and children – are being detained. You describe this as “a human rights black hole”. What can or should be done immediately for these people who are living in desperate situations?
You have thousands, almost over 60,000 men and women being held in detention centres, prisons, who have never been through any legal process; the idea that we would hold people in these conditions is simply abhorrent. And then we turn to look at the conditions in those camps. The special rapporteur on torture and I have found that the conditions in the camps reach the threshold of torture, inhumane, and degrading treatment under international law. So the fact that they are there is also unacceptable. But the bottom line is that we have states, mostly western states, who simply will not take back their nationals including children, who refuse.
So, there's a large-scale political solution that's required to fix the challenge in northeast Syria, which involves all of the significant parties to the conflict. However, in the short run, the only international law compliance solution to the situation in these camps is the return of women and children to their countries of nationality. We have some states who have made active and ongoing efforts to do so and some who have made no effort.
In the context of the current war in Ukraine, which Putin justified as “self-defence” in a response to threats by the “neo-nazis” in power, what hopes do you have of states addressing the misuse of counter-terrorism measures, and what does this tell us about the erosion of international law?
I think more broadly, what Ukraine is revealing is some of the fragility of the post-war order and the fragility of our international institutions. The UN charter was designed to prevent conflict from escalating. As the Kenyan ambassador to the United Nations said in one of the Security Council debates just before the war, he made the point that many states are unhappy with the borders that they were given whether it was after the Second World War, or historically. Borders were drawn, states have communities of affinity in many, parts of the globe with people who find themselves in other states. But the idea that this gives permission to the waging of aggressive conflict is just not accepted by our international legal system.
Professor Fionnuala Ní Aoláin is a leading expert in the fields of emergency powers, counter-terrorism and human rights, conflict regulation, transitional justice and sex-based violence in times of war. She is Regents Professor and Robina Professor of Law, Public Policy and Society at the University of Minnesota Law School and Professor of Law at the Queens University in Belfast, Northern Ireland. She is also visiting fellow at the Geneva Academy until June 2022.