Press Conference: Ben Saul, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

Okay, I think we can start. Hi, welcome to all of you, and thanks for joining us for this press conference, both here and online. We're happy to have with us Ben Saul, who is the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. He's here to brief you following the presentation of his report to the Third Committee of the General Assembly. Special rapporteurs, as you all know, are independent human rights experts appointed by the UN Human Rights Council. They serve in their individual capacity and they're independent from any government or organization, including the UN. And with that, Mr. Soh, we'll give some opening remarks and we'll take your questions. Ben, you have the floor. Thanks.

Thanks so much and good afternoon, everybody. Thank you for, good morning, thank you for coming. So my report yesterday to the General Assembly focuses on the new practice of listing organized criminal groups like drug cartels and gangs as terrorist organizations, mainly in the Americas. So about 15 countries now have listed about 39 groups in total as terrorist. And this is part of a new war on narco terrorism throughout the region and under the auspices of the Shield of the Americas initiative as well. Uh, we have, well, I have a, a couple of concerns, uh, about this new trend. Uh, one is that under international standards, uh, organized crime and terrorism should be governed by separate legal frameworks. In other words, terrorism is political or ideological violence, whereas organized criminal violence is defined under a UN treaty as crime for profit, for financial or material gain. And certainly there are links between organized crime groups and terrorist groups. And it's well known that ISIS, for example, made money out of flogging illicit oil and antiquities and so on. But that does not mean that drug cartels and gangs are acting for political reasons. They're acting primarily for profit, including when they meddle in elections or coerce populations. And it's appropriate that those regimes be kept separate, that counterterrorism powers are limited and applied to political violence, and that different tools are used for organized crime. We've secondly seen the problems of this conflation over the last couple of years in particular, with massive abuses of human rights throughout the region in this war on narco-terrorism. So firstly, and of foremost concern to me, is the illegal killing by the United States military of at least 239 civilians in 71 military strikes in the last year, since September last year. These killings have no justification under international law. It's not national self-defense, as the United States asserts, because these criminal groups have not launched a military armed attack on the United States, which is required before you can exercise self-defense. It's not an armed conflict under international humanitarian law because, again, the criminal groups, although criminal and violent and dangerous, are not armed military groups engaging in military combat with United States forces. These killings are one way. This is the United States executing civilians on civilian vessels at sea. And indeed, under the international law of the sea, there's no authorization for these kinds of strikes. You should board vessels and inspect them by consent of the flag state if they are suspected of drug trafficking. And indeed, under one of the so-called counter-terrorism conventions, the Maritime Safety Convention, deliberately using violence against a civilian ship or people on it constitute offences under international law. I also call it crimes against humanity under international law. The definition of crimes against humanity is a systematic or widespread attack on civilians. And 71 military attacks, a state policy to do that from the highest levels of the United States government, and then murdering 239 people constitutes the crime against humanity of murder. This isn't it, though, of course, because other states, Ecuador has declared a fake war. on organized criminal groups, again, not authorized under international humanitarian law. Ecuador's own constitutional court has said this repeatedly, and yet the government continues to shoot to kill drug cartel and gang members. States of emergency, imposing excessive restrictions on human rights in El Salvador, Ecuador, Honduras. under the guise of a fight against narco terrorism. There are also other risks under counterterrorism law, asset freezes, travel bans, summary deportations, like we saw from the United States to El Salvador and subsequently to Venezuela, terrorist financing restrictions, which can prevent humanitarian, human rights, and other civil society work in the Americas. So, look, beyond this, the third part of my report makes constructive recommendations for how states should combat and prevent organised crime while respecting human rights. You know, strengthen organised crime frameworks, strengthen law enforcement cooperation, intelligence, financial investigations, forensic and digital capabilities. prevent the flood of US made and sold and exported military grade weapons and munitions from flooding the Americas and 70% of cartel weapons in Mexico are from the United States. And finally, reform the demand side of drug misuse. You know, drug misuse is a terrible public health and right to life concern. Thousands, tens of thousands of people die here in the United States each year from drug misuse. So address it at the heart. Drug harm minimization, harm reduction, public health. and education initiatives. Think about responsible legalization of certain drugs to destroy the profitability of cartels. And an underlying theme to finish throughout my report is decades of wars on drugs in the Americas have failed to reduce drug cartel strength, violence, profitability. and combining the war on drugs with the war on terror, the worst of both worlds, is of course destined to fail. And we know that because the US's own Drug Enforcement Administration has said a year of killing civilians has not reduced the supply or purity of cocaine getting into the United States. So this is also killing for nothing. It's ineffective, let alone illegal and inhuman. Thank you and happy to take some questions.

Thank you, Mr. So. Edie, if you could introduce yourself to him, please.

Thank you very much on behalf of the United Nations Correspondents Association for doing this briefing. My name is Edith Lederer from the Associated Press. A couple of follow-up questions. First, did you contact the Trump administration for comment and did the United States send you any reaction? Secondly, is any other country carrying out anything similar to what the United States is doing and Are you conducting any investigations other than on the United States? And third, journalists, including myself, have received emails about your previous dealings with China questioning your credibility. Can you comment on that? Thank you.

Should I respond? Yes. No. Thank you, Edith. And yes, we have tried to engage with the United States on many occasions, including requesting a meeting with the ambassador here in New York this week. But unfortunately, because of the United States' disengagement with the Human Rights Council in Geneva, of which my mandate is part, unfortunately, they have not been cooperative with our work. We have had answers in certain forums. So, I mean, I've briefed, for example, the Commission on Narcotic Drugs in Vienna, and that's a forum in which the United States, because of its drug suppression policies and commitments over the years, does actively participate. And, you know, they have responded in context like that. But obviously, you know, this is this is state policy. So they they take a very different view on on the appropriateness of this response. Secondly, other countries, I mean, I think the The closest we've seen is, as I mentioned, Ecuador, but that's on a much lesser scale. So their law does authorize shoot to kill against organized criminal groups. They've declared 22 of them to be armed groups in an armed conflict against which the military is fighting. So far, it hasn't been kind of targeted killings in the way that the United States has conducted them. There was a strike some months ago on a remote farm which destroyed property, which was under a kind of war paradigm, but so far not this kind of targeting to kill people at the scale the United States is undertaking. I mean, there are some historical parallels. I mean, President Duterte in the Philippines obviously had a war on drugs, killing thousands of alleged drug dealers, et cetera. He's, of course, on charges precisely of crimes against humanity at the moment before the International Criminal Court, because it has jurisdiction in that case. But that wasn't that wasn't a war on narco terrorism. That was that was a rather a war on drugs paradigm. Third question on on China. You know, China is a member of the United Nations. It's the second largest contributor to the United Nations budget. Of course, it's going to fund United Nations mechanisms, including the human rights system. There's nothing unusual or untoward about that. And of course, the critical question is, you know, does China have any control over the way that money is spent? And the answer to that is no. It's an allocation which goes to the UN Office of the High Commissioner for Human Rights in Geneva. It doesn't come to me personally or and it's not under my control. and that money goes simply to funding the staff that support my mandate in Geneva and New York. And the Office of the High Commissioner for Human Rights has previously addressed this and made exactly these points that China has no influence over our work and this is completely in line with United Nations rules. Unfortunately, there is, of course, a smear campaign in some quarters to attempt to discredit United Nations special procedures, not just myself, but many others. Essentially, it's some people who think that Israel and the United States should never be criticized. And of course, we do our job impartially, independently. I'm a lifelong professor of international law and academic. That's always been my job in in my professional life and I would never take instruction from a government or reduce my criticism of government because someone sent some money to the UN Human Rights Office in Geneva. Unfortunately, it does point to a structural problem, which is my mandate and many others get no UN regular budget funding and have never done for 20 years since we've been in existence. And so it does mean that, unfortunately, the system has to rely on voluntary contributions from governments. My mandate also gets some contributions from Spain and Switzerland, as do many other, you know, mandates get funding from different governments. But just to reinforce, the key point is that China has no say in the work that we do. And of course, I've criticized China on many occasions. I did so in my report to the General Assembly last year, translated into six languages, including addressing the question of Xinjiang. I co-drafted the special procedures assessment of the Hong Kong National Security Law about two years ago. I've been very active on the Jimmy Lai prosecution and conviction in Hong Kong. So any suggestion that somehow I'm self-censoring or a stooge of China is utterly ridiculous.

Yes, please go ahead. And please introduce yourself.

Yes, thank you so much for this briefing. Namo Abdullah with Rudaw Media Network. You have counted 239 people killed in 71 U.S. strikes on vessels at sea, and you say there are reasonable grounds to see these as crimes against humanity. Do you believe President Trump and the officials who ordered them their personal criminal responsibility?

Yeah, thanks. So that's obviously a question of fact and evidence as to who bears responsibility for ordering and carrying out these strikes, under international law there's an obligation on a State where these kinds of credible allegations are made to investigate those allegations and to identify who are the perpetrators. So, of course, that includes not only the military commanders and anyone involved in carrying out those strikes. And I note that various senior retired members of the US military, including people in Congress, have called on US servicemen and women not to obey illegal orders to kill civilians. And that's part of US military law, in fact, that you shouldn't obey those kinds of manifestly illegal orders. But international law also requires not only military command responsibility, but civilian superior responsibility. So the buck stops with whoever ordered these strikes. Now, of course, under the US system, at least the Secretary of War, and the United States President are ultimately the actors who make decisions about going to war, use of military force, executive orders to use the military. This isn't authorized by Congress. And so I think logically they would be part of the chain to identify who bears ultimately ultimate responsibility for carrying out those strikes.

Just one follow-up. If Washington refuses to investigate, are you calling on other governments or the International Criminal Court to step in?

Yes, so crimes against humanity are crimes under customary international law that gives any states universal jurisdiction to investigate and prosecute them. At the same time, of course, international law still I think, has what we call head of state and senior official personal immunity while in office. So that does generally prevent foreign domestic legal systems from arresting or prosecuting a sitting president, prime minister, senior minister, like, let's say, a secretary of war, while they're still in office. That changes once they leave office. And so, you know, any any, you know, even a president after leaving office who travels to another country and is accused of a crime like General Pinochet back in the day, then are potentially liable to arrest. And at that point, there is no what we call functional immunity under international law for international crimes committed even when you were in office. So immunity bars prosecution, arrest while you're still serving, but not afterwards. That's why it is so important that the United States takes responsibility for enforcing, because there's no immunity before your own courts under international law. And in fact, international law prohibits immunities for heads of state and government for international crimes. So there's an inconsistency here, of course, because the US president under the US domestic legal system gets immunity for seemingly anything they do in office, that's not consistent with international law. International Criminal Law Court, look, the question there is whether it has jurisdiction. The United States is not a party, so there's no jurisdiction on that side. There could potentially be jurisdiction if any of the people who were killed had the nationality of a state that is a party to the International Criminal Court. That's a question of fact. We don't know a lot about who are these 239 people who've been killed. And so that's a question that would need to be explored as part of an investigation. And unfortunately, you know, because these people have have disappeared at sea in many cases, I mean, there have been a few, but not many survivors picked up and transferred back to Latin America. But it does mean it's then very difficult to investigate nationalities. There are lots of grieving families in the region and some cases being brought in the in the U.S. courts, in the Inter-American Court of Human Rights by American human rights organizations, ACLU, CCR, Center for Constitutional Rights, are trying to support those families to get answers for what has happened to the victims of those strikes.

Yeah, we have time for one more question. Go ahead.

Thank you. Murad Hashim from Al Jazeera Arabic. Do you support designating Houthi militia in Yemen as a terrorist group by United Nations and the state members, given its violation for human rights.

Yeah, so the United Nations does not have a global list of terrorist organizations. It only lists groups or individuals that are members or associates of Al-Qaeda or ISIS. So the basis for Security Council listing is then whether you could show, factually, are there links between the Houthis and Al-Qaeda or ISIS? I'm not an expert on the Houthis. My understanding is that is not or doesn't seem to be the case. That doesn't mean international action isn't appropriate against actors who violate international law, humanitarian law, human rights law, the prohibition on the use of force for de facto authorities in control of territory. But it doesn't necessarily mean capture is the appropriate paradigm. I mean, the Security Council has power to impose sanctions on anybody for threats to international peace and security, and I would include in that serious violations of human rights. And unfortunately, some members of the Security Council at the moment, probably a majority, I'd say, don't seem to think human rights is part of the job of the Security Council and isn't part of the peace and security mandate of the United Nations. Obviously, I disagree strongly. The United Nations Charter, as it was written in 1945, absolutely emphasized the inextricable links between development, human rights, and security. And we know that from so many past wars that everything from poverty to state oppression of human rights are causes of war and conflict. and tension within and between states. And so, of course, unless you address those causes, then you're not going to stop conflict in any kind of durable, lasting way.

Thank you. And then we have one last question, and then we'll have to wrap up.

It's a very brief one. Thank you very much for the briefing. My name is Mona Outul. I'm with Al-Quds Al-Arabi. Can you please walk us through the methodology you use in your report to distinguish organized crime and terrorism? And how do you determine what specific international legal framework applies to both of them? And thank you so much.

Yeah, thank you. So in the first part of the report, It makes this distinction based on international standards between crime primarily for profit, which is organised crime under the Convention on Transnational Organised Crime. and terrorism done for a political or ideological reason. And that comes really from the General Assembly's Declaration on Terrorism of 1994, which, as you know, there's no internationally accepted definition of terrorism. This has always been a problem because of debates about state terrorism and foreign occupation and so on. But certainly, in that very important political resolution in 1994, a declaration, especially important resolution, that's probably the most authoritative indication we have of what the international community thinks is terrorism, short of a binding legal definition. And of course, that says terrorism is certain criminal acts for political purposes. So that's the key distinction I draw in the report. As I said, obviously there can be overlap and links between organised crime and terrorism, but usually it is possible to put a group in one box or the other. And although certainly drug cartels, you know, they kill politicians, they meddle in elections, sometimes they provide basic services like cooking gas or communications in communities, and they even try to sort of govern communities in a loose way, but that's not their purpose. Their purpose is to make money, to protect the criminal operations of the group, not to be de facto governments. And in fact, in many of these countries, part of the problem is that these criminal groups are absolutely enmeshed with state authorities through corruption. It works for them to cooperate with bits of government, state officials who they've They've managed to get on side and that's a kind of cohabitation which works for them. They leave the politics to the politicians. They buy them off and they keep making money. This is part of the problem. You can't kill your way out of drug cartels. You have to strengthen governments, combat corruption, address poverty, which is an incentive for young kids in many of these countries to get involved in drug cartels and gangs. And this really simplistic war on narco-terrorism paradigm, as I said, we know will ultimately be ineffective and will perpetuate violence for many years to come.

Thank you, Special Rapporteur. Thank you all for joining and for coming. There are plenty of press conferences next week by Special Rapporteurs. I will send you a list. Thank you very much. Bye.