Susan Marie : UN: Office of the High Commissioner: Human rights / Counter terrorism

30 June 2011

Human rights / Counter terrorism:
The new UN listing regimes for the Taliban and Al-Qaeda

Statement by the Special Rapporteur on human rights and counter terrorism,
Martin Scheinin

GENEVA – On 17 June 2011, the Security Council adopted two landmark resolutions that result in a major reform of the Taliban and Al Qaeda terrorist sanctions regime. The listing of terrorist individuals and entities by a Committee of the Security Council, and the duty of all states to subject anyone on the list to a freezing of assets and a travel ban has grown from Resolution 1267 (1999). That resolution was limited in time and space, as it merely targeted the then Taliban regime of Afghanistan, to put pressure upon it to hand over terrorist leader Osama bin Laden.

Due to the threat posed to international peace and security by the Taliban harboring bin Laden, the resolution was a proper measure under Chapter VII of the UN Charter.

A highly problematic step was taken through resolution 1390 (2002) which, under Chapter VII of the Charter, converted the Taliban list into a global consolidated list of Taliban and Al Qaeda terrorists, without any temporal or geographic limitations. Coupled with the permanent, or at least indefinite, duration of the resulting sanctions, these features led the Special Rapporteur to conclude that the Security Council is acting ultra vires, beyond its powers, by maintaining under Chapter VII its consolidated list of Taliban and Al Qaeda terrorists.

The terrorist blacklist has been subject to consistent and growing criticism, including by certain judicial bodies and the Human Rights Committee, for its human rights shortcomings. Issues of fair trial and due process, right to privacy, freedom of movement and right to property have been raised and litigated.

The Security Council has proven to be responsive to criticism. A series of reforms have been decided to remedy at least some of the shortcomings and to bring elements of due process into the terrorist listing. Prior to the June 17 resolutions, Resolution 1904 (2009) was the most important of the reforms, establishing the office of a Delisting Ombudsperson and a tight time frame for the consideration of delisting requests.

Despite the reforms, the Special Rapporteur has maintained the position that the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial.

Therefore he takes the view that as long as proper due process is not guaranteed at the United Nations level when listing individuals or entities as terrorists, national (or European Union) courts will need to exercise judicial review over the national (or European) measures implementing the sanctions.

The Special Rapporteur’s assessment of the new Resolutions 1988 and 1989 is the following:

The two resolutions separate the Taliban and Al Qaeda sanctions regimes from each other. The 1267 regime, originally created for the Taliban, is converted into a global Al Qaida terrorist listing regime. The Taliban will be covered by the new Resolution 1988 which is based on a territorial limitation, the identification of the situation in Afghanistan constituting a threat to international peace and security.

While the new Taliban sanctions regime under Resolution 1988 is easier to reconcile with Security Council powers under Chapter VII of the UN Charter than the preceding global Taliban and Al Qaeda terrorist listing regime, it is a retrogressive step in relation to the human rights concerns expressed and the reforms already undertaken within it. In particular:

The grounds for delisting (paragrah 18) are openly political. They cover “individuals that meet the reconciliation conditions agreed to by the Government of Afghanistan and the international community”, which include “respect for the Afghan Constitution”.
The Delisting Ombudsperson, introduced through Resolution 1904 (2009) as a dimension of independent review in relation to the consolidated Taliban and Al Qaida terrorist list, will have no role in the new Taliban sanctions regime.

In relation to the modified 1267 sanctions regime, that under Resolution 1989 now relates only to persons or entities associated with Al Qaeda, the reverse observations apply:

The Special Rapporteur remains critical of the view that the criminal terrorist network generally known as the Al Qaeda would, without geographical or temporal limitations, constitute a permanent threat to international peace and security in the meaning of Article 39 of the United Nations Charter and hence trigger the powers of the Security Council to introduce under Chapter VII of the UN Charter mandatory measures, legally binding upon all Member States.
The Special Rapporteur commends Resolution 1989 for the important measure of removing the consensus requirement from delisting decisions. Under Resolution 1989, the Delisting Ombudsperson or the designating State can de facto exercise delisting powers by default, unless the 1267 Sanctions Committee by consensus decides to retain the listing.
However, this important improvement is compromised by the possibility of any member of the Security Council to refer a delisting recommendation by the Ombudsperson or by the designating State to the full Security Council, where its normal decision-making rules will apply. This means that delisting will require the votes of nine out of the 15 members of the Security Council and can be blocked by the veto of any of the five permanent members.

In the assessment of the Special Rapporteur, the Al Qaeda sanctions regime under Resolution 1989 does not, judged by the letter of the resolution, remedy the human rights shortcomings expressed in relation to the earlier Consolidated List. Judicial challenges at national and European levels are likely to continue.

Due to the unsatisfactory level of due process guarantees such as disclosure of information and a right to an effective remedy, the strengthened role of the Ombudsperson is unlikely to satisfy national or European courts that the safeguards at the United Nations level are sufficient, so that these courts could allow deference instead of exercising their jurisdiction over the national or European measures for the implementation of the sanctions.

However, if it turns out that Security Council members are prepared to secure all the following conditions, the assessment may change:

any listing proposal requires the submission of the full set of information that is used as the substantive basis for the listing proposal;
the person or entity subjected to the listing proposal has the right and practical means to effectively challenge the proposal;
the Delisting Ombudsperson has access to the full set of information used for the listing;
the delisting recommendations by the Ombudsperson or delisting proposals by the designating State are in practice respected, so that they are not overturned through a consensus decision by the 1267 Committee or referred to the full Security Council.

If these conditions are met in the implementation of Resolution 1989, the Special Rapporteur finds it likely that national or European courts will require listed individuals or entities to exhaust the delisting procedure of the Ombudsperson before exercising their jurisdiction in relation to the national or European implementing measures.”

ENDS

Martin Scheinin was appointed Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, by the former United Nations Commission on Human Rights in August 2005. His six years of service as Special Rapporteur will come to an end on 31 July 2011.

The mandate was renewed by the Human Rights Council in October 2010. As Special Rapporteur, he is independent from any Government and serves in his individual capacity. He is Professor of Public International Law at the European University Institute (EUI) in Florence, Italy.

As Special Rapporteur he has addressed the issue of terrorist listings on a number of occasions, including by appearing before the 1267 Sanctions Committee, as part of his country visits and in several of his thematic reports, including: