Interview with UN Special Rapporteur Fionnuala Ní Aoláin
Fionnuala Ní Aoláin speaks about her priorities, successes, and challenges as the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism.
The sculpture Non-Violence by Carl Fredrik Reuterswärd outside the United Nations Headquarters in New York City.
By: Megan Scott-Busenbark, Staff Member
UN Special Rapporteur Fionnuala Ní Aoláin (center) at the UN Human Rights Council in March 2020.
Fionnuala Ní Aoláin is the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. Ms. Ní Aoláin is also a law professor at the University of Minnesota Law School and the Queens University Belfast.
In this interview, Ms. Ní Aoláin spoke about her priorities, successes, and challenges as UN Special Rapporteur, reflected on her upcoming book, and advised emerging international human rights lawyers on how to get involved.
This interview has been edited for clarity and length.
First, congratulations on your reelection to another three-year term as UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. How have the priorities from your first term been achieved? What are your priorities for the upcoming three-year term?
Thank you. I was glad to be reelected. I had four priorities in my first term: First, addressing the intersection and impact of counter-terrorism, countering violent extremism, and emergency powers as they are being used against civil society; second, addressing the issues of transparency and human rights rule of law in the global governance of counter-terrorism; third, looking at states of emergency and the exceptional legal regimes that accompany terrorism; and fourth, gender mainstreaming in counter-terrorism.
I have kept those four priorities for my second term, and added two more thematic areas of focus: First, the intersection of new technologies and counter-terrorism, and second, the implementation and impact of international legal obligations in domestic counter-terrorism law.
In the past three years, I have tried to address my first priority of counter-terrorism measures against civil society in three main ways. First, I addressed civil society substantively by issuing a thematic report to the Human Rights Council in 2019. Using fifteen years of data collected by both of my predecessors and myself, the report showed that over 66% of communications sent by the mandate over 15 years to governments involved the use of a counter-terrorism measure against a civil society member or human rights defender. That is ineffective counter-terrorism if you’re targeting civil society and violates human rights. I hope that report put the misuse of counter-terrorism against civil society in the mainstream conversation.
Second, I have helped to co-convene a group of over forty non-governmental organizations (“NGOs”) from across the globe — international NGOs (“INGOs”) and smaller nationally-based NGOs — to work on counter-terrorism by strengthening and supporting civil society. Our most significant success was when that group ran a Virtual Convening on United Nations Counter-Terrorism and Human Rights in June 2020, with over a thousand groups, organizations, and governments in attendance.
Third, I continue to press for the engagement of global counter-terrorism architecture with civil society organizations. The misuse of counter-terrorism measures against civil society actors remains a real problem and a staple of my work every day. While I don’t think the mandate alone is responsible for the progress we are starting to see, the mandate continues to bring attention to this issue.
Your report to the Third Committee at the General Assembly emphasized how counter-terrorism practices are improperly and too frequently applied to non-international armed conflicts and to complex humanitarian settings. Is this unprecedented or something we have seen before?
The GA Report focused on the overall need to implement international humanitarian law standards, including the access of impartial humanitarian organizations, to these complex conflict sites as guaranteed by the Geneva Conventions. My view is that in order to implement human rights norms, you have to actually implement the international humanitarian law norms first. Humanitarians are an integral part of civil society space, so when you hamper them, you’re squeezing civil society in addition to preventing access to fundamental rights like food, water, and medicine.
Is it new? There has always been resistance by some states to the presence of impartial humanitarian actors in these complex and conflicted settings. What is new is that counter-terrorism is expanding into these spaces and displacing — or attempting to displace — humanitarian law. It is also new that counter-terrorism is becoming a rhetorical and legal justification for limiting humanitarian access.
On October 24th it was the UN’s 75th birthday. What role do you see the UN and your mandate as UN Special Rapporteur playing in ensuring human rights in counter-terrorism in the future?
One of my goals is to make my position redundant. This mandate was created after the events of 9/11 when serious deficits in human rights enforcement occurred through systemic practices of torture, rendition, disappearances, and arbitrary detention. If we weren’t having those problems, then we wouldn’t need my mandate, and we would be better.
The global counter-terrorism architecture has been on a massive growth trajectory over the past couple of years, and, in particular, it has been taking up more space in the UN. I have consistently articulated my concern for balance in the Charter, and counter-terrorism becoming an outsized solution to a set of problems that will not be solved by security-led measures.
I hope that twenty-five years from now, at UN 100, we will see a much smaller counter-terrorism footprint in the UN and see the empowerment and support for other areas of UN policy which really address the conditions conducive to violence. This includes: peacekeeping, the UN development program, the implementation of the sustainable development goals, and making the parts of the UN that prevent violence work, so that we wouldn’t be using militarized and securitized approaches to respond to the violence we are experiencing across the globe.
You have two upcoming books: The Paradox of Democratic Transition (2020) (Cambridge University Press) and Managing Terrorism through the Courts (2021). I would love to hear more about Managing Terrorism through the Courts and what role the courts play in countering terrorism while ensuring human rights.
My book draws on almost two decades of my data collection in Northern Ireland in the Diplock court system and in the Republic of Ireland’s Special Criminal Court. The book is interested in understanding how these exceptional courts function in a democracy.
Even though the data are from these two specific jurisdictions, they give broader insight and a textured empirical understanding of how exceptional court systems managing terrorism infiltrate and undermine the regular court systems.
I have always been struck by the reality that courts function both as a framer — framing the way we understand the problem of terrorism or violence — and as a management strategy for states in dealing with violence challengers.
Are the courts multifaceted enough to address the complex problems of ensuring human rights in counter-terrorism?
Courts are not solutions in these scenarios. Courts are arbitrators of individual guilt or innocence on particular cases. In individual cases, courts have the limited opportunity to touch on those larger challenges. When we see courts being used as the primary means to manage these complex productions of violence and its emergence, whether it’s of non-state actors or terrorist groups, it often speaks to the absence of more holistic policy solutions. I don’t think courts should be doing the bulk of that work. That work has to be done through other kinds of engagement.
Much of your work incorporates feminist legal theory. Could you explain how you incorporate a gendered analysis into your work?
As UN Special Rapporteur, I committed to mainstreaming gender. That includes country visits to women-led civil society, addressing specific impacts of counter-terrorism practices on women and girls, and also seeing men as a gender category. For example, many detainees are men, yet we tend to think of men as a neutral category, not as a gendered category. So it’s thinking about the role of men in families, society, and how men are recruited to engage in this violence.
What does it mean to have a gendered strategy for both men and women in the context of terrorism disengagement and reintegration? A good example would be about returnees from north-east Syria and Iraq to countries of origin. Thousands of women and children are currently being held in really desperate conditions in al-Hawl, Roj, and other refugee encampments in Northeast Syria. The conditions at the encampments have very specific gender dimensions and the costs of those conditions of confinement are gendered.
In every report, I try to address the specific gender dimensions. My team and I are currently writing a free-standing report on the gender effects of counter-terrorism for the Human Rights Council in March, 2021.
In addition to serving as a UN Special Rapporteur, you are also a law professor. How does your professorship, or other jobs you’ve had, complement your role as UN Special Rapporteur?
I’ve been really lucky that I have two academic institutions — the University of Minnesota and Queen’s University in Belfast — which really support the work I do. If I were working in the private sector, it is unlikely I could discharge the obligations of this mandate. But as a university professor, I am able to fulfill my Special Rapporteur role which is massively time-consuming.
As Special Rapporteurs, we are extraordinarily privileged to hold these roles, but I would also stress that we’re also structurally underfunded. The lack of support to Special Rapporteurs is a significant problem.
Special Rapporteurs have a very sharp learning curve coming into a role because it combines a legal role and a diplomatic role. This requires you to learn a particular set of skills of engaging with states from a very different position than any other you have probably ever held previously, unless you have previously been a diplomat or a member of a government. Prior to this role, I had done a fairly significant amount of policy work with international organizations, and that was definitely helpful.
So far, what have been the most difficult and rewarding components of this role?
We have difficult decisions every day. Counter-terrorism is an enormous space, so the biggest challenge is that every day there is a situation happening in a country where the mandate could intervene, but simply doesn’t have the resources.
We have almost no resources. My time is pro bono and I have a very small staff. I have 1.5 staff members — really extraordinarily competent professionals working in Geneva — and I fundraised to have two legal advisors who support me. When our team decides what we can and cannot do, we recognize that there are cases that if we are not there, there may not be an international human rights-based intervention into that case.
The most positive moments are often not public. Sometimes I work bilaterally with the government and we will get a change in the government’s approach to an issue. Those are often the best successes because you’ve done your work in a way that’s been supportive of the government, yet the government has come to its way of doing it — maybe with a nudge or a push from you.
And we do win some cases. Recently the mandate worked extremely closely with the family of a five-year-old orphaned Canadian child being held in al-Hawl camp in Northeast Syria. The mandate found the conditions in the camp met the international legal standards of torture, inhumane, and degrading treatment. After many, many months pressing the Canadian government to bring her home, I got a call from the girl’s family that their niece was coming home.
Those wins are rare, but they do mean that you have transformed the life of that one child. And then you wake up the next day, and there are forty-one Canadian citizens still in the camps, and you start again.
Coming to a close, what advice would you have for law students or lawyers seeking to engage in promoting human rights in counter-terrorism? How can we engage and what support is needed?
This is an area where we don’t have enough lawyers. Counter-terrorism isn’t an easy space to do human rights work in. The wins are few and far between, the space is very narrow, and sometimes you look like you’re not on the right side. Like the fight for climate justice, we’re not going to win these fights in one or two years, we’re going to win these fights over lifetimes.
Law students, even though you are not yet qualified to be giving legal advice, you can learn by volunteering at organizations who do really good human rights work. When I was a student in Belfast, Northern Ireland (LL.B. and Ph.D in Law) and Columbia Law School (LL.M.), I volunteered at local organizations. I probably made five thousand cups of tea while volunteering as a law student; however, I also learned valuable skills watching an incredible generation of lawyers like Mike Posner at the then-Lawyers’ Committee for Human Rights in New York.
I would encourage people interested in this area not to look too far away. Just look right around you, see what needs to be done, and jump right in.
Megan Scott-Busenbark is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Lewis & Clark College in 2016.