A/HRC/28/59
16.
In the case of terrorism, money received by a suspect terrorist group may not have
been used to actually commit an act of terrorism.12 However, that does not mean that the
funding did not sustain a terror group and its terrorist acts. The issue may be more complex
in relation to funding provided to States perpetrating gross violations of human rights, but
the same argument can be made.
17.
One would of course have to differentiate between whether funding provided to
States directly finances the commission of gross violations of human rights, or maintains
the general functioning and sustainability of a regime that violates human rights, and to
what extent funds provided to such regimes might still be used for the realization of human
rights, including social and economic rights. 13 Sometimes funds facilitate the commission
of gross human rights violations in a more direct way, for example when they are used to
equip intelligence services, police or other security forces with tools or weapons of
repression. In many cases, financial support may rather have an indirect effect through
enabling a regime that violates human rights to last longer by, for example, allowing it to
fund patronage. We need to better understand when, whether and how official and private
lending may contribute to gross human rights violations, in order to design and implement
effective laws and policies at the national and international level aimed at minimizing the
risk that financial support enables Governments or non-State actors to commit such
violations.
18.
With the present report, the Independent Expert intends to contribute to a better
understanding of when financial support may contribute to or sustain the commission of
large-scale gross human rights violations by sketching a rational choice framework
premised on the incentives of authoritarian Governments and private and official lenders.
As developed further below, authoritarian regimes make rational policy choices when they
try to stay in power, using available funds to foster loyalty or repress opponents. Lenders
also make rational calculations when deciding on loans, for which the likelihood that they
will be paid back is key. Complementing the qualitative explanation, the Independent
Expert will discuss the existing empirical evidence of the relationship that exists between
sovereign financing, human rights practices and the consolidation of non-democratic
Governments engaged in gross violations of human rights. Finally, the Independent Expert
will present some interim conclusions and invite stakeholders to discuss them. The legal
and policy implications of financial complicity will be discussed in a future study.
III. How additional funds consolidate authoritarian regimes
in most situations
19.
Authoritarian regimes committing gross human rights violations are politically
vulnerable because of their problems of legitimation. Such regimes endeavour to retain
power and do so by securing privileges for part of the population, the elites, the military or
the security apparatus, by allocating economic benefits and/or political concessions in
exchange for support. To remain in power, a regime must address economic constraints in
ways that secure a minimum of political support, or enable the bureaucratic or repressive
machinery to function efficiently, control society or repress the population. There is a
12
13
See the discussion in Holder v. Humanitarian Law Project, US, 130 S .Ct. 2705 (S.C., 2010); Boim
v. Holy Land Foundation for Relief and Development, 549 F.3d 685 (7th Cir. 2008); Almog et al. v.
Arab Bank plc, 471F.Supp.2d 257 (E.D.N.Y. 2007); Weiss et al. v. National Westminster Bank plc,
453 F.Supp.2d 609 (E.D.N.Y. 2006); In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d
765 (S.D.N.Y. 2005); Linde v. Arab Bank plc, 384 F.Supp.2d 571 (E.D.N.Y. 2005).
Those ideas have been developed by the Independent Expert in “Tracking down the missing financial
link in transitional justice”, International Human Rights Law Review, vol. 1, No. 1 (2012).
7
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