United Nations A/75/337 General Assembly Distr.: General 3 September 2020 Original: English Seventy-fifth session Item 72 (b) of the provisional agenda* Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms Promotion and protection of human rights and fundamental freedoms while countering terrorism Note by the Secretary-General** The Secretary-General has the honour to transmit to the General Assembly the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, submitted in accordance with General Assembly resolution 72/180 and Human Rights Council resolution 40/16. __________________ * A/75/150. ** The present report was submitted after the deadline as a result of consultations with Member States and other relevant stakeholders. 20-11440 (E) 091020 *2011440* A/75/337 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin Summary In the present report, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, addresses the interface between international human rights law and international humanitarian law in counter-terrorism contexts. She affirms the interdependent and intersectional nature of the relationship between both legal regimes, which is all the more pronounced in counter-terrorism contexts. She acknowledges the persistent and unequivocal affirmation by the Security Council and other bodies that any counter-terrorism measures must always and fully comply with, inter alia, the overarching norms of international human rights law, international humanitarian law and refugee law. This is a key basis on which the Special Rapporteur makes the recommendations set out in the report. She affirms that counter-terrorism operations and measures are frequently undertaken in the context of non-international armed conflicts in which international humanitarian law applies and which involve non-State armed groups, including actors subject to terrorist designation by the United Nations and its targeted sanctions regime or those included on regional and national terrorist designation lists. The Special Rapporteur reiterates her concern about the lack of sufficient consideration regarding the interaction between international humanitarian law and the norms and standards relevant to countering terrorism, leading to a troubling conflation of the two. She is likewise deeply concerned that such conflation leads to the weakening of human rights protection in fragile, conflict and post-conflict settings. She makes recommendations to prevent such weakening, which does not serve the interests of justice or security. She underscores that failure to take due account of both international humanitarian law and international human rights law results in counter- terrorism practice that fails to protect the most vulnerable, including persons deprived of their liberty, persons with disabilities, older persons, persons in need of medical care, women and children. She sets out the costs of the failure to systematically apply humanitarian exemptions for activities that are humanitarian and impartial in nature and are absolutely essential for the protection of the most vulnerable persons in society. She makes specific recommendations to augment the due process protections applied in sanctions regimes, thereby ensuring the optimal application of convergent judicial guarantees under both legal regimes. She addresses the application of the principle of equality across both legal regimes and with regard to foreign terrorist fighters and other regulatory arenas, providing clear guidance to States on what the import of that principle requires in practice. She applauds the work of humanitarian organizations, including the contributions that many make as guarantors and enablers of civic space in many of the most fragile and contested areas in the world. She denounces attacks on the integrity, independence and operational capacity of such organizations, whether directly or indirectly, by States through the prism of counter-terrorism rhetoric or regulation, and underscores that the organizations are critical to the protection of humanity and the dignity of the most vulnerable and, thus, to conflict resolution. 2/22 20-11440 A/75/337 I. Introduction 1. The present report is submitted to the General Assembly by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, pursuant to Assembly resolution 72/180 and Human Rights Council resolution 40/16. In the report, she analyses the interface between human rights and international humanitarian law in counter-terrorism contexts, with a particular focus on counter-terrorism practices that are inconsistent with or undermine the integrity of fundamental rights, duties and protections under those legal regimes. 2. A report on the work undertaken by the Special Rapporteur in fulfilment of her mandate in the period since her previous report to the General Assembly is provided below. II. Activities of the Special Rapporteur 3. The Special Rapporteur had a fruitful year, advancing sustained dialogue with States on the protection and promotion of human rights. She presented a report to the Human Rights Council in March 2020 on the productive visit that she undertook to Kazakhstan. She noted the positive leadership of Kazakhstan in ensuring the return of over 500 nationals, primarily women and children, from the north-east of the Syrian Arab Republic (see A/HRC/43/46/Add.1, paras. 60–61, for her recommendations). She accepted a country visit to Maldives, which was temporarily postponed owing to the coronavirus disease (COVID-19) pandemic. She conducted a working-level visit to the European Union in January, and appreciates the ongoing dialogue with its institutions. 4. In her thematic report on the human rights impact of policies and practices aimed at preventing and countering violent extremism (A/HRC/43/46), the Special Rapporteur acknowledged the social and political imperatives of addressing violent extremism, but underscored that only rights-affirming and rights-focused policies would have long-term success in preventing violence. She highlighted the lack of a robust scientific basis for the current policies and practices and the complete absence of human rights-based monitoring and evaluation, including by United Nations entities. 5. The Special Rapporteur has made it a priority to provide technical assistance and views concerning counter-terrorism legislation to States.1 In the past year, she provided reviews of legislation or legislative developments to Cambodia, China, Egypt, France, India, Kyrgyzstan, Peru, the Philippines, Switzerland, Turkey and the United Kingdom of Great Britain and Northern Ireland. 6. The Special Rapporteur is a signatory of the United Nations Global Counter- Terrorism Coordination Compact and an active member of its working groups. In February, she participated in the regional high-level conference on the theme “Foreign terrorist fighters: addressing current challenges”, held in Vienna. She also participated as a speaker in Counter-Terrorism Week, which was held online from 6 to 10 July. 7. In July, the Special Rapporteur published a study on the human rights implications of the use of biometric tools and data in the counter-terrorism arena,2 and a multi-stakeholder consultation is planned. She produced draft principles on __________________ 1 See www.ohchr.org/EN/Issues/Terrorism/Pages/LegislationPolicy.aspx. 2 Krisztina Huszti-Orbán and Fionnuala Ní Aoláin, “Use of biometric data to identify terrorists: best practice or risky business?”, 2020. 20-11440 3/22 A/75/337 human rights-compliant watch listing to inform, inter alia, the Global Counterterrorism Forum joint initiative aimed at developing a watch-listing guidance manual.3 8. The Special Rapporteur continued her engagement with non-governmental organizations (NGOs), human rights defenders and civil society. Meetings were held in Belfast (United Kingdom), Brussels, Dublin, Geneva, Minneapolis (United States of America), New York, Paris and Washington, D.C. She prioritized meeting with NGOs remotely during the COVID-19 pandemic, including those in the Philippines and Turkey. She participated in the high-level meeting on global counter-terrorism and human rights, organized online by 11 NGOs on 11 June.4 She met regularly with victims of terrorism and their representative organizations and worked closely with women’s organizations that address the negative effects of counter-terrorism practices on women and girls. She also met regularly with humanitarian organizations and remained deeply concerned about the challenges that civil society actors face in their day-to-day work owing to the adverse and nefarious use of counter-terrorism and extremism laws. 9. The Special Rapporteur issued several communications, including joint communications, on the use of legislation framed as national security and counter- terrorism against civil society actors. She submitted amicus briefs to the Court of Appeal of England and Wales (in the case relating to Shamima Begum) and the European Court of Human Rights (in the case Mohammad and Mohammad v. Romania).5 10. The Special