As he takes office as the UN’s sole special rapporteur on human rights and counter-terrorism this week, Prof Ben Saul’s purview is dominated by what he views as one serious, though not unprecedented, “mistake”: countering terrorism with military might.
“Unfortunately, when 9/11 came, the same kind of pressure to take the gloves off became manifest pretty quickly,” says the incoming monitor and Challis chair of international law at the University of Sydney, as he reflects upon Israel’s siege of Gaza in response to Hamas’s attacks on 7 October.
“We know that overreach and exceeding the well-accepted limits of international law, human rights law and the law of armed conflict is a serious mistake, which does not make communities or the world safer.”
Rather, it breeds ongoing radicalisation, extremism and discontent which, he says, is not a recipe for peace.
“I think we know we have to address the underlying structural conditions which lead towards extreme violence, including terrorism. And, I fear that at the moment, we’re making those same mistakes all over again.”
Saul is beginning his six-year tenure as one of the world’s foremost guardians of human rights – no matter whether those humans are women, children or terrorists. His mandate is driven by the UN counter-terrorism strategy that was adopted in 2006 by the general assembly, including Israel and Australia.
“It makes the point that conditions conducive to terrorism, which is how it’s phrased, include things like protracted, prolonged unresolved conflict, serious human rights violations and systematic discrimination. All of these things have been present in Israel-Palestine for many, many decades.”
One of his first visits will be to Geneva, and alongside global counter-terrorism financing laws and technological regulation, high on his agenda is the urgent repatriation of Islamic State fighters. In north-eastern Syria, Australian prisoners – former Islamic State fighters and their wives and children – are held in Kurdish rebel-run prisons and detention camps, where some are essentially being starved to death. Their fate goes beyond humanitarian concern: their ongoing potential radicalisation creates a hard security issue.
Despite well over two decades of funding for and development of global counter-terrorism strategy, terrorism is only growing. Saul reflects on whether the dominant military solution to terrorism in Afghanistan and Iraq, parts of Africa and the Middle East has worked, or, in a more strategic long-term sense, it has been a “catastrophic failure”.
Australia’s place in that web is firmly within his remit. Saul is concerned by Australia’s well-known challenges in complying with its international human rights obligations, particularly counter-terrorism laws which have been found to be excessive by successive UN bodies, the independent national security legislation monitor, parliamentary joint committees and independent reviews requested by the government itself.
It is not just suspected terrorists who are affected by excessive counter-terrorism laws, he warns. Many such laws are deliberately used to shut down civil society, restricting NGOs and limiting media reporting.
But, while addressing the “rough edges” of Australian legislation can only be helped by a robust parliamentary system, without a binding bill of rights, “when we get bad laws on the books, they’re here to stay, unfortunately”.
Increased tribalism arguably makes Saul’s job more critical than ever. Australia made the decision to abstain from voting in Sunday’s UN resolution for a humanitarian truce.
Gaza has been described as a “humanitarian catastrophe” since Israel declared it was cutting food, water and fuel supplies to the enclave after Hamas’s brutal attacks. “Deliberately starving a population of civilians is a war crime, yet many western states seem to be trying to demonstrate that they’re standing shoulder to shoulder with Israel,” Saul says.
Israel has linked the siege to the release of hostages taken by Hamas, though an Israeli defence official said this week it would allow a “dramatic increase” in aid to Gaza in the coming days.
Saul says there is a “place for absolutely condemning hostage-taking by Hamas and all of the other violence and undoubted war crimes” by Hamas, “but I don’t think it’s necessary to link those things when there’s an urgent humanitarian crisis that needs resolving”.
To Saul, the UN represents the moral authority and clarity that are often lost in polarisation. And, in power struggles heightened by extremism, muddied by disinformation and accelerated by technology, the values at the heart of his work – which he says he’ll give “a cracking good shot” – remain immovable.
“The UN secretary general has been crystal clear in what is needed at times like this, which is respect for international law by all parties, and empathy or sympathy for the victims on both sides,” Saul says. “We absolutely have to maintain our emphasis on alleviating suffering in war.”
