Key Takeaways
- Lack of Definitions: There is no universally accepted definition of terrorism allowing governments to target individuals with differing viewpoints.
- Vulnerable Groups: Rights advocates (including lawyers), political dissidents, journalists, academics, civil society, and minority communities (including ethnic minorities or LGBTQI+ individuals) are especially vulnerable to criminalization under the pretext of countering terrorism and terrorism financing..
- Growing Illiberalism: Illiberalism is rising globally, increasing the risk that executive branches will suppress public spaces, stifling efforts to hold governments accountable and transparent.
- Legislative Stickiness: CT Laws are often passed as emergency laws, bypassing public consultation and review, allowing for human rights violations. These laws tend to persist, shifting from exceptional to regular use.
- Need for Checks and Balances: Robust checks and balances within legislation (such as in Canada and New Zealand) are critical to minimizing harm to human rights. Where domestic mechanisms fall short, international pressure and legislative review by international bodies such as the UN is critical.
- Free Press and Civil Society: The press and civil society play a crucial role monitoring overreach of broad powers. It must remain skeptical of sensational plots and provide deeper integration to ensure human rights are protected.
- Freedom of Speech and Assembly: Without these freedoms, advocating for other rights, including economic rights is impossible. Mature economies rely on information flows and freedoms for sustained growth and development.
Analysis
Hong Kong’s National Security Regime & Recent Developments
Hong Kong’s Safeguarding National Security Ordinance (SNSO), passed in March 2024 exemplifies the global trend towards securitization with profound implications for human rights. Adopted with unprecedented speed, legislators justified its passage by pointing to national security laws in the US, UK, and other jurisdictions. While these laws often contained vague wording, broad latitude to police and courts, and extraterritorial effect, the SNSOs lack of judicial safeguards sets it apart and is a closer reflection of the People’s Republic of China (PRC). The SNSO marks a further erosion of Hong Kong’s once robust liberal institutions, including academic and press freedom, political opposition, civil society, and judicial independence. The SNSO adopts the PRC concept of “comprehensive national security” and authoritarian practices such as opacity in the selection of national security judges, bail prohibitions, limited access to lawyers and near 100 percent conviction rate, combined with swift passage without genuine public consultation. Hong Kong serves as a warning, illustrating how democratic institutions can be eroded and replaced with an illiberal framework.
At least 140 countries have Countering Terrorism (CT) legislation, but there is no globally accepted definition of terrorism. After 9/11 UN adopted resolution to bring terrorist to justice and prohibit their funding but did not define terrorism or provide clear guidance. CT measures are often developed in closed, non-transparent environments dominated by men lacking cultural diversity, and tend to target local and indigenous groups reflecting patriarchal and colonial power dynamics. While intended for exceptional circumstances, measures are increasingly used by governments to protect the Executive branch and suppress public spaces. Such laws are typically overly broad restricting freedoms of expression, association, and other human rights. Canada and New Zealand have comparatively good practices, including reporting obligations when pending legislation violates human rights and sunset clauses with adequate public consultation. For more recalcitrant states, where such practices are not possible, regular review by the UN of CT laws can be helpful.
Countering Terrorism Laws in the Middle East and North Africa (MENA)
CT laws in the region follow global trends of lacking a common definition of terrorism and being overly broad with few limitations, enabling governments to target human rights defenders. For example, Algeria’s penal code classifies any act aimed at state security, integrity, stability, and the normal functioning of institutions as terrorism, while one Middle Eastern country’s counterterrorism law defines terrorism as any intentional act intended to disturb public order. This vagueness is replicated across many countries in the region. Implementation is further complicated by a lack of judicial independence, accountability, and transparency in most countries in MENA. Numerous cases have been reported of arbitrary arrests, torture, and other forms of inhumane treatment, with limited oversight. Despite the repressive environment and risks to personal safety, civil society actors across the region continue to push back against these CT laws and restrictions through engaging in capacity building, information-sharing, peer-to-peer learning, and networking efforts.
National Security Laws in the United States
Global trends of exceptionalism, secrecy, and broad Executive powers exist in the US national security framework. Despite a functional judicial system, courts in the US often defer to the Executive branch in national security cases. Post 9/11, the threshold for domestic surveillance dropped from suspicion of criminal activity to protecting against crimes, national security threats or collecting foreign intelligence. This shift also moved from individual to collective responsibility targeting minority communities. Safeguards in traditional criminal investigations, such as prohibitions against targeting people based on protected characteristics such as gender or race are less strict for national security surveillance. For example, if a South Asian group conducts a poison gas attack overseas, the FBI can target US members of that ethnic group for information. This shift has led to informants listening to conversations and encouraging boastful individuals resulting in arrests based on potentially government-encouraged plots. This can undermine trust within the targeted community and in the justice system. The press serves a critical watchdog role in curbing overreach of these already expansive powers. While we see growing skepticism in sensational plots of entrapment but needing deeper integration to ensure proper informant use and prevent abuse.
Participants
Facilitator
- Rosa Celorio, GW Law, Associate Dean for International and Comparative Legal Studies
Speakers
- Hong Kong: Michael Davis, author of Freedom Undone and Global Fellow with Wilson Center
- Hong Kong: Eric Lai, Research Fellow for Georgetown Center for Asian Law
- Global: Adriana Edmeades Jones, Professor at University of Minnesota Law
- MENA Region: Lana Baydas, Program Director at the American Bar Association Center for Human Rights
- US: Faiza Patel, Senior Director of the Liberty and National Security Program at the Brennan Center for Justice