Report- Overdue Process: Protecting Human Rights while Sanctioning Alleged Terrorists

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An April 2009 report explains the history behind the current controversy over the United Nations' (UN) process for listing terrorists subject to UN sanctions. Written by the Fourth Freedom Forum and Kroc Institute for International Peace Studies at the University of Notre Dame, the central theme is that "Practices used by the United Nations Security Council (the "Council") in the name of countering terrorism have led to serious concerns about violations of human rights and limitations on the work of civil society groups."  It recommends due process standards and steps to help achieve that goal. 

Background
Negative Impact of UN Listing Process
Reform Pressure from the EU
Proposed Solutions
The Impasse and Recommendations for Action

Background
UN Security Council resolutions require member countries to freeze assets and impose restrictions on individuals or organizationsdesignated as terrorist supporters by its Al-Qaeda and Taliban Sanctions Committee (1267 Committee). These entities are than placed on the "Consolidated List. The report notes that "The decision to place an individual or entity on a list denies basic rights to liberty and property and has serious legal consequences," including freezing assets and travel restrictions. After 9/11 "the 1267 Committee hastily added more than 250 names to the list, mostly at the behest of the U.S. government." 
 
In 2005 UN responded to concerns in its World Summit Outcome document, calling on the Council to "ensure fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions."
 
"The UN Global Counter-Terrorism Strategy, adopted unanimously by the General Assembly in 2006, calls on all states to develop effective law enforcement and criminal justice systems to counter terrorism, while striking the proper balance between liberty and security."
 
In 2006 and 2008 the Security Council passed resolutions calling for:

• Stronger review mechanisms for listing
• Better notice procedures
• Mandatory public statement and narrative summary of the reasons for listing
   

It also directed the 1267 Committee to review all names on the Consolidated list by June 2010 and to renew each listing every three years "to ensure the Consolidated List is as updated and accurate as possible and to confirm that listing remains appropriate."
 
Although the Council has made some improvements, such as requiring those listed to be given a summary of the reasons, the report says the overall process is still inadequate. For example, in 2006 the Security Council created a procedure for processing delisting requests. Called a "focal point," it "had little impact on due process rights."
 
Negative Impact of UN Listing Process
Civil society organizations (CSOs) that work in conflict zones are particularly vulnerable the broad reach of these sanctions, despite the fact that social welfare programs and conflict resolution efforts "are important counterterrorism measures in their own right." This has caused "aid and philanthropic organizations in the United States, Canada and Europe to become risk averse and exercise a caution that has led in some circumstances to a decline in financial support for development and peace dialog activities."
 
The processes for listing and delisting at the UN "do not respect internationally recognized human rights…The Eminent Panel of Jurists of the International Commission of Jurists received 'virtually uniform criticism' of this system, which is deemed 'arbitrary' and discriminatory by numerous nations and international agencies."
 
Reform Pressure from the EU
In 2008 a coalition of European countries urged the Council to consider independent judicial review for those placed on the list. In September of that year the European Court of Justice’s decision in Kadi and Al Barakaat Internaitonal Foundation v. Council of the European Union and Commission of the European Communities held that, because the UN system does not respect rights guaranteed by the EU system, member countries are not obligated to implement the sanctions within their borders. "The Court also ruled that due process rights embodied in the European Court of Human Rights (ECHR) take precedence over other international obligations." For example, the EU listing process includes a semi-annual review of designations.
 
The case began when American victims of the 9/11 attacks sued Yassim Abdullah Kadi, a Saudi businessman, in Swiss courts accusing him of providing financing for the attack. After an investigation, Swiss authorities dropped the charges and in December 2005 cleared Kadi of any links to the 9/11 attacks. However, Kadi remains on the UN list. Kadi and Al Barakaat Foundation began their efforts to get off the Consolidated list in December 2001 when the case was first filed, claiming his right to use property, get a fair hearing or seek an effective judicial remedy were violated.
 
The Kadi litigation is ongoing. After the European Court decision, the 1267 Committee submitted narrative summaries of its justification for the listing and the parties submitted written responses. In November 2008 the court held the listing was justified and Kadi brought a new action in the European Court of First Instance in February 2009.
 
Proposed Solutions
The due process problems has generated a number of reports and proposals (See Appendix B of the report) to bring the listing process into line with human rights law. Elements of fundamental human rights standards" include the right to judicial review, the right to procedural fairness, the right to be heard and the right to judicial remedy. These rights form the very basis of due process of law and are guaranteed by leading international legal agreements, including the Universal Declaration of Human Rights, the Inter-American Commission on Human Rights, and the African Charter on Human and Peoples' Rights."
 
Eminent Panel of Jurists set out legal principles for listing/de-listing procedures:

• Criteria for listing should be "clear, publicly available and non-disc riminatory"
• Listings should be "time-limited and subject to limited review"
• Persons or entities placed on the list should receive sufficient notice
• "Opportunities must be accorded to rectify errors"
• A process for contesting listing with an effective remedy must be provided
• Independent review
  

The Impasse and Recommendations for Action
The pressure from the EU and other member countries has caused a debate within the UN, with the permanent members of the Security Council opposing such an approach because they see the listing process as an administrative and political tool that is not subject to judicial review. Member countries, on the other hand, "consider that all Council actions to preserve peace and security, including listing for counterterrorism purposes, should be consistent with the highest standards of international law, especially human rights." The result is an impasse for the reform effort.
 
"The discourse on appropriate review mechanisms for the listing/de-listing procedure thus appears to be trapped in a quandary. Proposals that would fulfill the due process requirements of international human rights law are politically unfeasible, whereas proposals that may gain support from the Security Council contain shortcomings as far as internationally guaranteed due process rights are concerned."
 
To overcome this stalemate, the report suggests that:

• UN member countries become more involved in efforts to protect due process rights
• Continue legal challenges to unfair listing procedures in national and regional bodies
• Advocate for the right of judicial review and other systemic reforms
• Pursue Incremental improvements
   

CSOs "must continue to articulate how, why and where the existing sanctions regime has tended to sacrifice rights to security and intelligence concerns." The opportunity for change is there and, as the report says, the "tide is turning."