AML/ATF Update

By Terrance S. Carter, Nancy E. Claridge and Sean S. Carter

Sep 2023 Charity & NFP Law Update
Published on September 28, 2023



United Nations General Assembly Releases Report on Countering Terrorism

The United Nations General Assembly passed Resolution 76/169 in December of 2021. This resolution urges member states to ensure that human rights are respected when governments oppose terrorism.

On August 2, 2023, a report (“the report”) was produced by the United Nations General Assembly, which further expands on and clarifies those goals.

The report emphasizes the need to view countering terrorism and safeguarding human rights as interconnected goals, while also highlighting ongoing concerns regarding national counter-terrorism laws, due process, fair trials, and the impact on civic freedoms, as well as addressing the role of new technologies and the situation of third-country nationals with alleged ties to designated terrorist organizations.

The UN Global Counter-Terrorism Strategy promotes a holistic approach, with the following categories being recognized as significant in the fight against terrorism.

1. Counter-Terrorism Legislation

The absence of a universally accepted definition of terrorism has led to varying definitions in national legislation, but international legal frameworks provide guidance on possible definitions, emphasizing compliance with international human rights law and principle of legality. Vague and overbroad criminal laws related to counter-terrorism create uncertainty and may infringe on rights, like freedom of expression, freedom of association, and peaceful assembly. States have been advised to review their terrorism laws to align them with human rights standards. The use of terms like “extremism” without specifying “violent extremism conducive to terrorism” can be problematic and overly broad, potentially encroaching on human rights, necessitating precise legal definitions in accordance with international human rights law.

2. Civic Space and Counter-Terrorism

The Secretary-General emphasizes civic space and participation as essential principles for advancing human rights. It is essential that civil society organizations, particularly local and women’s groups, foster dialogue and create an environment hostile to terrorism incitement. Resolution 76/169 urges states to protect civil society work, recognizing its value in enhancing human rights efforts while countering terrorism.

However, some counter-terrorism measures restrict civic space and hinder civil society work, including arbitrary detention, travel restrictions, and criminalization of civil society activities related to ill-defined terrorism-related offenses. Ethnic and religious minorities, human rights defenders, journalists, and political opposition members are disproportionately affected. Proscription and targeted sanctions, though theoretically for preventing terrorism, have raised concerns about compliance with human rights standards and misuse against civil society organizations. Online freedom of expression is also constrained by vague counter-terrorism laws and private companies’ influence over content moderation.

3. Administration of Justice and the Death Penalty in Context of Counter-Terrorism

Accountability for serious violations of international humanitarian and human rights laws is essential for upholding the rule of law and justice for victims, with states obligated to investigate, prosecute, and punish perpetrators of human rights violations and terrorism-related offenses while also protecting individuals from terrorism threats. However, human rights violations persist in terrorism-related legal proceedings, with concerns about due process, allegations of torture, coerced confessions, and extended detention without proper oversight. The imposition of the death penalty for terrorism-related offenses that do not meet the “most serious crimes” threshold, especially when convictions lack fair trial guarantees, remains a concern. Children have also faced the death penalty for terrorism-related crimes in some countries, and limited progress in prosecuting sexual and gender-based violence by terrorist groups or in counter-terrorism contexts raises further issues, calling for increased international support to address these challenges.

4. Use of New Technologies in Counter-Terrorism Efforts

The use of artificial intelligence and emerging technologies in counter-terrorism presents both opportunities and risks. While these technologies can enhance the effectiveness of counter-terrorism measures, they also raise significant concerns regarding human rights, including privacy, freedom of expression, non-discrimination, and fair trial rights. Surveillance measures and the use of biometric technologies risk violating the rights to privacy and non-discrimination, particularly when targeting minorities and marginalized communities. Internet shutdowns, often justified for maintaining public order and national security, have been condemned by human rights bodies as indiscriminate and disproportionate. Careful scrutiny and oversight are essential to prevent technology misuse and uphold human rights in counter-terrorism efforts.

5. Individuals with Alleged Links to Foreign Terrorist Fighters

Thousands, including women and children, with suspected ties to terrorist groups like Da’esh, are held in dire conditions in Syria’s displacement camps, facing limited access to humanitarian aid and legal recourse, with the COVID-19 pandemic worsening their situation. Children in these camps, a significant majority, have restricted access to education and healthcare, and there are concerns about forced separations of boys from their families. Slow repatriation efforts, the removal of nationality, and deteriorating conditions have led to an unsustainable situation, prompting the United Nations to launch a Global Framework to address these issues, emphasizing the need for safe and voluntary repatriation as the most suitable solution given the evolving accountability landscape in some countries of origin.

6. Conclusion

The report concludes by stating that the global commitment to human rights remains essential in the context of countering terrorism, where the protection of human rights and counter-terrorism objectives must be pursued collectively by states.

The report is a welcome and much needed counterbalance to the proliferation of overly broad anti-terrorism legislation that has been passed by many countries since 2001.


Read the Sept 2023 Charity & NFP Law Update