Special Rapporteur: UN Terrorist Listing Regime Lacks Due Process Guarantees

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Date: 
November 15, 2012

The United Nations’ Security Council targeted sanctions regime “continues to fall short of international minimum standards of due process,” a UN expert said on Nov. 2, 2012.  In a report critical of the UN 1267 Sanctions Regime (1267), which dictates the sanctions for members and supporters of terrorism, UN Special Rapporteur Ben Emmerson identified several key deficiencies in the listing and de-listing process.  He recommends that the Security Council introduce a “sunset clause” imposing a time limit on the duration of all designations and also called for amendments to the mandate of the 1267 Ombudsperson’s office to incorporate minimal international standards of due process for delisting petitions. 

Under the 1267 regime, the Security Council is responsible for designating individuals and entities to be sanctioned and also decides upon the requests for removal.   Emmerson describes this process as “inconsistent with any reasonable conception of due process, and gives the appearance that the Council is acting above and beyond the law.” The process needs independent review of listing decisions, instead of the current system where the Security Council essentially acts as judge and jury.  Emmerson said the current process also fails “to facilitate the promotion and protection of human rights, due process and the rule of law,” as instructed by the General Assembly’s Global Counterterrorism Strategy to all UN entities working on counterterrorism efforts.

Some of the due process failures found in the 1267sanctions regime noted by the Special Rapporteur include:

  • Inadequate international review of the domestic judicial process for listed entities
     
  • The failure of the 1267 Sanctions Committee to consider the evidence underlying proposals to list individuals
     
  • The Security Council’s lack of due process mechanisms despite its quasi-legislative and quasi-judicial functions under the sanctions regime

More than a third of the report focuses on the Ombudsperson position, which was created in December 2009 by Security Council Resolution 1904 to provide recourse for people who believe they have been unfairly included on the UN’s sanctioned terrorist list. The Special Rapporteur finds that the Ombudsperson has “gone to very considerable lengths to make her office as effective as possible in affording petitioners a measure of procedural justice.”   However, “the mandate of the Ombudsperson still does not meet the structural due process requirement of objective independence” from the Security Council’s control.  The Ombudsperson’s office, Emmerson said, should “be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorization of humanitarian exemptions.” 

Additionally, “the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA)”, and Emmerson suggests that individuals should be able to petition the Ombudsperson directly for humanitarian exemptions. The Special Rapporteur considers that such applications “constitute the determination of a “civil right” under international human rights law.”

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