A/HRC/40/52
similar “verbal act offences”, or for “membership” of armed organizations and “assisting a
terrorist group”.85
F.
Increased use of administrative measures
48.
Administrative measures are increasingly used by States to address various terrorism
and security threats. The many laws adopted after the adoption of Security Council
resolution 2178 (2014) to curb the threat posed by foreign terrorist fighters include
executive travel bans and revocation of citizenship. Given the lack of a definition of
terrorism, States have reportedly been able to ban from travel humanitarian workers,
medical staff, peaceful activists, human rights defenders, members of political parties,
youth activists, people associated with NGOs, and academics, often without providing
reasons and with no judicial recourse.86
G.
Devolution of regulation to private actors
49.
One significant concern is the increased use of measures that subcontract regulation
and implementation to private actors that, until recently, have had little to do with
countering terrorism or violent extremism. Such actors find themselves obliged to play a
front-line role in the implementation of often vague and ambiguous counter-terrorism and
other security legislation or regulation, under the threat of disproportionate sanctions and
very short time frames. These delegation processes can have a serious impact on
fundamental rights and freedoms necessary for the existence of civil society. First, because
the complex processes involved lack in judicial oversight and transparency, and remedies,
where they exist, are difficult to access and onerous. Second, because such devolved
powers, resulting from overly broad, vague or ambiguous legislation and the threat of
judicial action, will almost inevitably lead the subcontracted companies to over-regulate.
50.
Information and communications technology companies hosting third-party content,
which have been facing mounting pressure from Governments to proactively monitor and
police content generated or disseminated by users in the field of terrorism, have been
particularly affected by legislation that imposes obligations to take down “terrorismrelated” content and is used as a basis for threats of criminal litigation or civil liability. The
threats involved and the lack of guidance given to companies often lead to overregulation,
as shown by the overly broad and imprecise definition of terrorism applied by Facebook,
which equates all non-State groups that use violence in pursuit of any goals or ends to
terrorist entities, 87 a matter that the mandate holder has addressed bilaterally with
Facebook.
51.
Financial institutions have been similarly burdened by measures that address access
to banking services for the purpose of countering the financing of terrorism. 88 In many
countries, Governments have turned to financial institutions for the implementation of new
standards, drastically increasing the levels of regulatory compliance for financial
institutions. Typically, these processes involve an administrative decision against a
financial institution,89 while the implementing decision that affects the right of civil society
to access resources results from the operation of a private contract between the financial
institution and its customer. As failure to comply can be very costly for financial
institutions, leading to punitive action, many risk-averse banks have implemented protocols
85
TUR 14-2018.
86
Human Rights Watch, “Foreign terrorist fighter laws: human rights rollbacks under UN Security
Council resolution 2178” (2016). See also www.hrw.org/news/2015/11/01/egypt-scores-barredtraveling# and www.hrw.org/news/2015/07/10/tunisia-arbitrary-travel-restrictions#.
87
OHCHR, “UN human rights expert says Facebook’s ‘terrorism’ definition is too broad”, (3
September 2018).
A/70/371, paras. 42–44.
See, for example, Collectif de développement et secours Syrien, “Defense d’aider?
Comment les institutions financieres francaises entravent l’action humanitaire en Syrie”,
(2018).
88
89
14
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