CTC 20th Anniversary | An Interview with E.J. Flynn on Human Rights

2021 marks the 20th anniversary of the passing of Security Council resolution 1373 and the creation of the Counter-Terrorism Committee. As a part of the year of commemoration, CTED experts reflect on their work.

E.J. Flynn, Senior Human Rights Officer at the Counter-Terrorism Committee Executive Directorate, coordinates a small team of professionals that work on human rights issues, gender issues, and on countering violent extremism. This interview has been edited for brevity.

Mr. Flynn: Resolution 1373 was adopted at a moment of great global turmoil, of global shock and revulsion at the horrific terrorist attacks that took place in the United States on 11 September 2001. And so the Security Council proceeded very quickly, within a matter of weeks, to adopt the resolution. And I think that Member States at that time were not ready to make a clear statement about the connection between counter-terrorism measures and respect for human rights. It's important to say at the outset that counter-terrorism itself is a human rights obligation. Counter-terrorism is based on the obligation of States to protect the rights to life and to personal security. So counter-terrorism, in a way, is a human rights requirement, but it had been noted at that time and continues to be noted now that resolution 1373 rather strikingly does not make any specific reference to States’ obligations to respect human rights in countering terrorism.

What was it that prompted the Security Council to first include human rights issues and rule of law issues in resolutions dealing with countering terrorism? 

Mr. Flynn: I think the gradual incorporation of human rights into the Security Council's counter-terrorism resolutions was a great example of the power of global advocacy and solidarity and concern that counter-terrorism can really not be effectively achieved without respect for human rights. I was involved very much in that effort, with many, many others of course. I was working with the Office of the United Nations High Commissioner for Human Rights (OHCHR) in the years just after the adoption of 1373 (2001), and I remember that the High Commissioner for Human Rights at that time, Mary Robinson, was a strong advocate for the Council to take human rights into account in its counter-terrorism resolutions. The same was true for the late Sergio Vieira de Mello, who succeeded Ms. Robinson. And many States of course also, while stressing their support for resolution 1373 (2001) and other Council counter-terrorism resolutions, said that they thought it was important for the Council to take human rights into account. And I should also mention that civil society organizations (CSOs) -- both global and national -- were very strong in insisting on that as well, so it was a true global coalition, which put pressure on the Security Council to incorporate human rights into its counter-terrorism mandate.

Does every Security Council resolution dealing with counter-terrorism mention human rights? 

Mr. Flynn: What has been remarkable, since the adoption by the Council of resolution 1456 in 2003, is the fact that human rights has found its way into the Council's counter-terrorism resolutions, and it's been an incremental process. Over the years, and in recent years, if you look at for example, resolution 2396 (2017), on measures against foreign terrorist fighters (FTFs), you will see references to human rights and the rule of law mentioned many times throughout that document. So, as I say it's been a gradual process, but now there is no question about the Security Council's commitment to insisting on respect for human rights in counter-terrorism measures. 

Have you seen a change in attitude towards the human rights and rule of law aspects of countering terrorism in your time working in CTED? 

Mr. Flynn: There has been a substantial change in the approach taken to human rights and the rule of law in our counter-terrorism work. We of course operate under the guidance of the Counter-Terrorism Committee and the Security Council and they have been very clear that we at CTED should ensure that human rights is very much a part of our work in all that we do. There have been debates, and these were evident in the very early days, when some States took the position that human rights really is not a concern properly of the Security Council under the charter [of the United Nations] and that it should be handled by mechanisms, for example, based in Geneva, and under the authority of the Human Rights Council. And, even today, there are different views expressed on that, but think the Council has clearly come to a consensus which we can see in the resolutions themselves, which have always been adopted unanimously, showing that Security Council Member States accept and acknowledge that human rights must be a part of the Counter-Terrorism Committee's work and CTED’s work.

I think the Council has clearly come to a consensus which we can see in the resolutions themselves, which have always been adopted unanimously, showing that Security Council Member States accept and acknowledge that human rights must be a part of the Counter-Terrorism Committee's work and CTED’s work.

Human rights is now a cross-cutting issue in the CTC’s and CTED’s work.  What does that mean?

Mr. Flynn: To say that human rights is a cross-cutting issue is a recognition really of the fact that human rights and rule of law cannot be treated in isolation. These are issues and values which apply in all the specific areas that the Council has required States to act in relation to counter-terrorism. So in the areas of legislation, of prosecution and bringing terrorists to justice, in countering the financing of terrorism, in preventing international travel of terrorists, in preventing the abuse of information and communications technologies, and in other areas, the Council has been clear.  And I think it's intuitive that in order to adequately address these issues, they all have very important human rights aspects.  So, human rights is something that CTED on behalf of the Committee really raises, not just at one time in our dialogue with States but really in connection with our dialogue about all aspects of the Council's counter-terrorism resolutions.

What are a few of the biggest human rights challenges encountered by States in implementing the Security Council's counter-terrorism resolutions?

Mr. Flynn: There are a number of really profound challenges that some States continue to struggle with. One of them is the nature of the terrorism crime. I think States find it difficult to achieve that nuanced approach, which shows that they are treating terrorism without resorting to exceptional or extraordinary measures. 

Another one is the question of international cooperation, and this is a challenge for individual States and for the world community and for the Committee and CTED. Because States do, in fact, approach terrorism and counter-terrorism in rather widely differing ways, and that can present complications for international legal cooperation for sharing legal information for mutual legal assistance, for extradition, and for any kind of international cooperation. So this remains a significant challenge for States in implementing the resolutions:  finding a common approach which strengthens international cooperation. 

And one other thing I'd like to mention is achieving the recognition that respect for human rights is really essential in order to prevent acts of terrorism. And the Council, in its resolutions, has referred to prevention and has said that counter-terrorism will not be achieved by law enforcement, military measures or intelligence operations alone, but that it's essential also to look deeper into conditions which could be conducive to terrorism. And so I think that the challenge that perhaps we need to pay more attention to going forward is that a general pattern of respect for human rights will help in preventing acts of terrorism, and of course the converse is true as well. The Council has been very clear that violations of human rights can lead to further radicalization and violence.

What are some of the main human rights concerns that continue to be a priority in the work of CTED?

Mr. Flynn: Unfortunately, there are quite a number of human rights concerns that remain of great concern to the Committee and CTED. And I think that there is global recognition that human rights violations unfortunately persist in counter-terrorism efforts. One of the more troubling ones that I would point to is the abuse of counter-terrorism measures and the failure, whether deliberate or not, by States to properly define the offence and the willingness of some States or their practice of applying counter-terrorism measures against acts that are not violent in nature. Of course, States are still debating a comprehensive international convention on terrorism, which would include a definition of terrorism, but at the same time what we have seen in quite a number of States is the use of counter-terrorism measures against, for example, non-violent political expression or the activities of CSOs conducting their activities in a lawful manner. And that is a serious concern in the implementation of counter-terrorism measures. 

There are quite a few others. I would mention the continued use by some States of exceptional or special measures in terrorism cases where there are unusual rules such as limits on access to counsel or the use of special tribunals, or indefinite detention without trial. These are serious concerns. Certainly, there are issues over the targeting of counter-terrorism measures against certain populations in violation of the global universal right to freedom from discrimination. There are concerns also that have grown over the years about measures that restrict the right to freedom of expression, including in the use of information and communications technologies (ICT) such as the Internet and social media. And that's a very challenging problem for States to tackle. But it's important that their measures in that area, including such things as removing content from the Internet, are conducted in compliance with human rights obligations. 

I'd like to also mention the importance of the right to privacy, as we have seen greater and greater use of technologies in counter-terrorism activities. There has of course been a greater intrusion into our personal space, and so there is a lot of concern about the use of these technologies, the protection of data, the respect for the right to privacy. We all have seen the proliferation of the use of cameras and certain kinds of surveillance techniques, and the use of biometrics in counter-terrorism. All these activities can of course be lawfully implemented, and they do play an important role. But it's important, I think, that States have recognized the need to ensure that they are implemented in a way that respects the right to privacy.

Do you feel like the work you've done to promote respect for human rights and counter-terrorism over the past 17 years has made an impact? 

Mr. Flynn: A lot of people don't know this but there was quite an effort over the years - this is going back, maybe a decade or so - to ensure that measures taken to prevent the abuse of non-profit organizations (NPOs) by terrorists did not also result in violations of the rights to freedom of association, freedom of conscience, freedom of expression. And, I, along with many others, including here at CTED, worked for example in our dialogue with the Financial Action Task Force (FATF) which, in its early days, and certainly in the years after 9/11, did not really take human rights into account. I think that there was just a feeling that human rights was not directly relevant to the financial regulations implemented by FATF. But what we saw over the years was an increasing acceptance by FATF and States that have been members of FATF to incorporate a human rights-based approach, a risk-based approach to the regulation of NPOs and CSOs in a way that did not abuse those organizations’ legitimate and important activities. And FATF has really adopted a much more human rights-based approach to this very particular area of counter-terrorism and countering the financing of terrorism. 

Another issue I'd like to mention is the very strong incorporation of gender into the work of the Counter-Terrorism Committee and CTED. That also was absent in the early years, and there were many debates at the Security Council and among Member States about whether a strong gender component was relevant to effective counter-terrorism, whether it was important to apply a gender analysis when looking at where terrorism comes from, whether it was important to promote the rights of women and consider the different ways in which terrorism and counter-terrorism affect men and women. But we have seen a remarkable strengthening of the attention to gender in counter-terrorism efforts. So that is an important area. 

And one other is the incorporation of human rights into the activities of social media companies. And that has been a gradual and important process but now CTED is very pleased with the cooperation that we have on behalf of the Committee, with the private sector, with tech companies, in order to support them in their efforts to ensure that the measures they take to prevent the abuse of their platforms also comply with international human rights standards. So, we have initiatives such as the Tech Against Terrorism initiative, which CTED was really a central part of creating. Now you also have the Global Internet Forum to Counter Terrorism (GIFCT). So, we've seen a lot of progress in terms of incorporating human rights into the work of social media companies in their efforts to prevent abuse of their platforms.

How have CTED assessments and on-site visits addressed human rights issues? (This question was answered in writing after the video interview.)

Mr. Flynn: CTED’s assessments on behalf of the Committee have addressed human rights issues at a steadily increasing rate since the Executive Directorate’s establishment in 2005. In the years just after CTED’s creation, human rights formed only a small part of the dialogue with States, since this was a new topic of discussion and always a sensitive matter. However, as the Security Council strengthened the human rights mandate given to the Committee and CTED, and as the Committee’s guidance in this respect became clearer, human rights received increasing attention in country assessments and on-site visits. 

Human rights are mainstreamed throughout the technical topics addressed by CTED, so in all of them – criminal legislation and prosecutions, counter-financing measures, preventing the abuse of ICT and others – relevant human rights issues are addressed. However, over the years, some areas of acute human rights concern specific to terrorism have also required close attention. These include, for example, overbroad definitions of terrorist acts in national legislation; “extra-legal” treatment of terrorism suspects, such as extended detention without judicial review, or hidden detention; use of special courts; extraordinary rendition of suspects between States; the use of torture and ill-treatment; and policies that target or “profile” certain groups. CTED has addressed all these issues in its dialogue with States, where relevant.
In addition to its own human rights resources, which have grown over the years, CTED relies on the findings and jurisprudence of United Nations human rights mechanisms, including the treaty bodies and special procedures. It has maintained a close and ongoing dialogue with OHCHR, the mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and other mechanisms. CTED also references findings and recommendations of regional human rights bodies, CSOs, and academic experts, as appropriate.

The main goal of CTED’s human rights dialogue with States is to encourage greater compliance with international legal obligations which, as the Council has observed, will enhance the effectiveness of States’ counter-terrorism measures. Human rights compliance has a positive impact both at the national level and with respect to strengthening international cooperation in bringing terrorists to justice. CTED strives to monitor progress on these issues, to urge that concrete steps be taken, and to link States with assistance providers that can be of support, where relevant. However, work in this area remains an ongoing challenge.