6 weeks after the shock of 9/11, the global community under the umbrella of the Financial Action Task Force (FATF) introduced new rules around counter-terrorism financing. As part of those, they declared the civil society sector as particularly vulnerable to terrorism abuse.
There were no representatives of the nonprofit sector in the room when that decision was made. It unleashed a string of restrictions on the work and existence of civil society.
12 years later, the standard-setters looked for evidence – and found out that this ‘particularly vulnerable’ premise and narrative do not stand ground. he risks that civil society will be abused by terrorists was found low. As a result they changed the premise calling for a more nuanced approach – assessing in each country the level of risk and responding proportionally to that risk.
Security and respect for human rights and freedoms are not a zero-sum choice - they should go hand in hand.
However, 20 years later, there is ample evidence from many countries on how security-related measures, including counter-terrorism financing and anti-money laundering having increasingly negative impact for the civil society sector and for human rights, through poor design or intentional misuse. The use of the narrative continues not only on the national but also international contexts. We saw that most recently at the UN level in negotiations around the Global Counter-Terrorism Strategy, which failed to fully integrate meaningful protections for civil society.
The restrictions vary from
- legal provisions that restrict activities or add layers of burdensome requirements, often not applicable to business sector,
- repressive measures against lawful, non-violent activists or groups,
- limiting access to financial resources or foreign funding,
- governmental smear campaigns with the objective of delegitimizing groups or activists by loosely characterizing them as “terrorists” or implying that they are “threats to national security.”
On top of this, there are often vague definitions (such as what constitutes a terrorism act), leading to inconsistencies in the implementation of the standards or their abuse for restrictive purposes. Worryingly, this narrative continues to be invoked or integrated in new measures under the counter-terrorism pretext. Most recently, environmental groups advocating for measures to prevent climate change are being called eco-terrorists. Security measures are also being used to respond to the pandemic. Technology and biometrics are being misused to target and deter activists. New standards around use of technologies by terrorism fail to recognize the need for human rights and civic space safeguards.
We identified three key issues that create a backdrop for these restrictions.
1. Lack of risk-based approach
Although the international standards, those of FATF and the UN Security Council, require countries to develop and fully implement a risk-based approach, often governments introduce measures and regulation that apply broadly to (all or most) CSOs but lack adequate bases in risk assessment. This results in non-targeted restrictions that disrupt the activities of legitimate organizations. In addition, there is sometimes evident disregard for a risk-based requirement - for example, countries label civil society sector as high(er) risk despite lack of evidence or clear risk assessment findings, or even contradicting their own risk assessment reports that find the sector not at high risk. The FATF country evaluation reports show the same trend – governments struggle, misapply or clearly lack risk-based measures for civil society sector. Similarly, the UN CTED report found that most countries do not apply it properly.
The question is – if the risk-based approach is a starting point for effective security, and is largely missing, then how do we even begin to discuss appropriate measures to address terrorism threats and protection for civil society sector?
2. Lack of proportionality
Countries often adopt regulations that target civil society and are justified using the CT or CFT framework, but that are disproportionate to the risk, or are intended to restrict CSO activities and suppress dissent. Proportionality of measures is complex and difficult to achieve. First, it involves proportionality to the risk – meaning, we need to know and understand the risk to then discuss what measures should be taken and whether they are proportionate. Second, it requires looking into country’s international and regional human rights obligations. Proportionate measure also means the one which is not contrary to the international or regional human rights standards - for example, the International Covenant on Civil and Political Rights and the UN Human Rights Committee general comments and jurisprudence. And third, looking at domestic measures – are the frameworks already existing sufficiently addressing the identified risk and if not, where are the actual gaps in regulation and self-regulation. We recognize this is a complex task, and it would be useful to have further guidance and good examples – noting that there are no copy-paste solutions, as each country is unique with its own context, history, culture and risks. These measures cannot be developed and adopted in a speedy vacuum – authorities need to discuss it with human rights specialists, involve their national human rights institutions and engage the civil society sector to discuss proposals and developments. In addition, civil society has developed their own, internal mitigating measures and self-regulation, which contributes to the proportionate response. This self-regulatory approach is potential that needs to be explored further by states and civil society.
And finally, it sometimes comes down to building trust. However, there is an issue that stands in the way.
3. Abuse of investigative powers and criminalization of activists
In recent years, we see increased launching of (administrative or criminal) investigations against civil society groups and activists under the guise of security or AML/CFT compliance. These range from so-called fishing expeditions and overreach into collecting confidential information, to effective smear campaigns against organizations or their staff without concrete evidence. Usually, it is evident that reasoning for investigations is extremely vague, criteria for investigations or accusations not clear or non existent. This is unacceptable. If abuse happens, it erodes the public and CSO trust in the authorities. How are they suppose to rely on the government to protect society from terrorism when they are abusing powers? That also means undermining country’s own efforts to effectively fight terrorism and money laundering. We know one of the greatest threats today stems from declining trust in governments and authorities, and the bad actors are using that opportunity. If the authorities abuse investigative powers, they likely play into the narrative of terrorists and violent extremists to radicalize further those who are vulnerable. Governments should therefore stop abusing their investigative powers, as this puts us all in a greater danger.
Is there a way forward?
A study using state-of-the-art statistical techniques and looking at most countries in the world from 2009 to 2016, found no evidence that legal restrictions on civil society make a country safer from terrorist threat. The authors found instead that countries may pre-empt terrorist attacks more effectively if they create the trust of populations in their borders and when police and security forces that do not kill, torture and arbitrary arrest individuals.
On the national level when civil society were meaningfully engaged in counter terrorism efforts, they were able to work with vulnerable communities to minimise threats. They supported good governance measures among the organisations which lead to lower risk of abuse. They also did their own assessments to identify the risk and design measures to prevent it. It is thanks to the constructive engagement of civil society that we see change in the international level approaches. We do see examples of governments who accept that working together with the civil society sector will be more beneficial to identifying the risks. This now needs to be applied consistently:
- We need to abandon the approaches based on pre-emption of risk and creation of negative narratives. Legal measures need to be based on actual evidence of actual threats.
- We need true reform of the international and regional counter terrorism architecture – with meaningful guidance and clear limitations against abuse.
- We need to recognize the power of cross-sector coalitions – and make sure civil society is an equal partner rather than a target.
Only then we can really tell a different story 20 years from now on.