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Blacklisted: Targeted Sanctions, Preemptive Security and Fundamental Rights

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Blacklisted: Targeted Sanctions, Preemptive Security and Fundamental Rights Blacklisted: Targeted sanctions, preemptive security and fundamental rights 10 years after 9 / 11 Publication Series www.ecchr.eu Blacklisted: Targeted sanctions, preemptive security and fundamental rights BLACKLISTED: Targeted sanctions, preemptive security and fundamental rights by Gavin Sullivan and Ben Hayes ECCHR 2 TABLE OF CONTENTS Foreword Professor Martin Scheinin, UN Special Rapporteur on the promotion and protection of human rights while countering terrorism 6 Ⅰ Introduction 9 Ⅱ Terrorism Designation: the UN and EU Blacklists 11 2.1 The UN Sanctions Regimes 12 2.2 The 1267 Sanctions Regimes 14 2.3 The 1373 Sanctions Regimes 14 2.4 The UN Blacklists: Procedural Reforms 17 2.5 The EU Terrorist Lists 18 2.6 The EU Lists: Procedural Reforms 25 Ⅲ Blacklisting and Human Rights 27 3.1 The Right to a Fair Trial 28 3.1.1 The Right to be Heard 29 3.1.2 The Right to be Informed 31 3.2 The Right to Judicial Review / Right to an Effective Remedy 35 3.3 The Right to Property 41 ⅠⅤ Challenging the Lists 43 4.1 Terrorism Designation and Due Process: the PMOI 46 4.2 Unfounded Allegations: the Sison Cases 48 4.3 Appeals Denied: the PKK Cases 50 4.4 No Judicial Review Possible?: the Basque Cases 52 4.5 Too Flawed for German Law: the DHKP-C Case 53 4.6 Criminalising Public Support for Proscribed Organisations: The Fighters + Lovers Case 55 4.7 Blacklisting and the ICCPR: the Sayadi & Vinck Case 57 4.8 Fundamental Rights and European Judicial Review: the Kadi and Al Barakaat Cases 61 4.9 Blacklisted in New York, Cleared in Switzerland: the Nada Case 63 4.10 Unconstitutional Sanctions: the Case of A, K, M, Q and G v HM Treasury 66 4.11 Material Support and the Gendered Impact of Blacklisting: the Case of M and Others 68 4.12 Prisons without Walls and Political Resistance: the Abdelrazik Case 77 Ⅴ The Broader Impact of the Lists 79 5.1 Externalisation and Expansion of Executive Power 82 5.2 Proliferating Pre-crime: Administrative Measures, Criminal Effects 84 5.3 Transforming the UN Security Council 86 5.4 Outsourcing the Definition of Terrorism, Undermining the Right to Self- determination 88 5.5 Broadening the Scope of Terrorism: Criminalisation by Association 90 5.6 Impact on conflict Resolution and Peace Processes 92 5.7 Terror Lists and Gender 94 5.8 Extending the Policy of Designation: the Generalisation of Blacklists into Everyday Life 101 ⅤⅠ Reforming the Blacklists: too Little, too Late 103 6.1 A Crisis of Legitimacy 105 6.2 Fundamental Flaws of the Blacklisting System 106 6.3 Critically Evaluating the UN and EU Reforms 107 6.3.1 UN Reforms in Perspective 110 6.3.2 EU Reforms in Perspective 112 6.4 Ways Out and Forward 112 6.4.1 Independent Judicial Review Mechanism at the UN Level 114 6.4.2 National Implementation and Review of UN Blacklists 116 6.4.3 Abolition of UN Blacklisting Regimes 120 6.4.4 Next Steps for the EU 126 ⅤⅡ Conclusion 3 4 FOREWORD “Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested.” This is the opening line of Franz Kafka’s famous novel about the Process (1925), somewhat misleadingly translated into English as The Trial - misleading because Josef K., like most of those who are blacklisted, never received a trial. It is Kafka who is therefore often used to describe the combination of procedural limbo and interference with ordinary life that faces those who are blacklisted as suspected terrorists. In my capacity as UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, I have expressed concerns about the use of terrorist lists since the beginning of my mandate in 2005. A thematic report on the impact of counter-terrorism measures on freedom of association and free- dom of assembly in 2006 highlighted a number of basic principles and safeguards which would need to be respected and applied in order for the 1267 listing procedures to be brought into line with generally accepted human rights standards, including the principle of legality and legal certainty, the principles of proportionality and necessity, and a number of procedural guarantees for inclusion on the list, including the right to judicial review and the right to a remedy. Unfortunately these principles and safeguards are still not respected today. Over the years, the Security Council’s 1267 Sanctions Committee, maintaining the con- solidated list of Al Qaida and Taliban terrorists, has been responsive to the criticism in the sense that it has been willing to enter into a dialogue with the Special Rapporteur and continuously revised its listing and delisting procedures in order to give them an appear- ance of due process. Perhaps most remarkably, Resolution 1904 (2009) established the office of an independent delisting Ombudsperson to assist applicants in getting their delisting requests before the Sanctions Committee. Despite all reforms and dialogue, the fundamental problems with the UN terrorist listing regime persist. All decisions, including those on listing and delisting, are made by the 1267 Sanctions Committee, a political body composed of the diplomatic representatives of the 15 member states of the Security Council. Once a person is listed, this is with indefinite duration and subject only to the delisting power of the same Committee. Perhaps most alarmingly, that decision requires full consensus, i.e., one state with a seat on the Security Council can block it, even without expressing its reasons. The Ombud- sperson can independently collect and provide information but can neither decide nor even recommend delisting. Although a summary of the ‘reasons’ for terrorist listing nowadays need to be given to the person concerned, this is something quite different from actual evidence of links to terrorism. In fact, it appears that listing decisions can be made on the basis of assertions by some states that they possess intelligence information, rather than through sharing the evidence with others. Just one look at the composition of the Security Council at any given time will be enough for the observer to realize that the 15 states running the show are not willing to share their intelligence with each other. Further, there is no judicial review of the listing and delisting decisions by the 1267 com- mittee. In 2010 I presented to the United Nations General Assembly a new thematic report on the compliance of United Nations itself while countering terrorism. This report takes the view that whatever justification there was in 1999 for targeted sanctions against Taliban leaders as the de facto regime in Afghanistan, the maintenance of a permanent global terrorist list now goes beyond the powers of the Security Council. While international terrorism remains an atrocious crime, it is not generally and on its own a permanent threat to the peace within the meaning of Article 39 of the UN Charter. Therefore it does not justify the exercise by the Security Council of supranational sanctioning powers over individuals and entities. I am glad to see that this ECCHR report endorses this conclusion on the basis of its thorough review of the UN listing system. This report of the European Center for Constitutional and Human Rights is important because of its comprehensive coverage of the origins and development of the UN and European Union terrorist lists, their impacts, their political significance and the way in which they have been challenged in national and regional courts. Most importantly, it provides a European per- spective to an international human rights problem that originates at the UN Headquarters in New York. Its conclusions concerning a reform of the European lists deserve attention by every policy maker. There is a fundamental need for a broader public debate concerning the future of terrorist listings. This report provides an important opening for this discussion. MartiN SCHEININ November 2010 5 6 Ⅰ Introduction This Report is about one of the most controversial aspects of the so-called ‘War on Terror- ism’. Paradoxically, and in contrast to practices like extraordinary rendition, torture, arbi- trary detention and extrajudicial killings - which have been widely documented in the media and systematically challenged by NGOs and human rights groups - it also one of the least understood. At face value, terrorist proscription (the act of designating a group or individual as terrorist, as an associate of known terrorists, or as a financial supporter of terrorism) seems like a reasonable response to the heinous crimes of 9 / 11 and subsequent terrorist attacks. Ostensi- bly, these procedures are designed to disrupt the activities of terrorist groups by criminalis- ing their members, cutting off their access to funds and undermining their support. Appearances can, however, be deceiving. The terrorist proscription regimes enacted by the international community after 9 / 11, notably by the United Nations (UN) and the European Union (EU), have been seriously undermined by growing doubts about their legality, effec- tiveness and disproportionate impact on the rights of affected parties. This policy of ‘black- listing’, as we call it, is in crisis. In October 2009, concerned at the relative lack of public attention on the issue, the Euro- pean Center for Constitutional and Human Rights (ECCHR) organised a workshop and conference (Terrorism Lists, Executive Powers and Human Rights) at the Université Libre de Bruxelles to discuss the issue. The events brought together a range of jurists, academics, legal and human rights practitioners actively engaged on this issue to identify the funda- mental problems and identify ways that strategic litigation could continue to be used to challenge the blacklisting regimes and provide redress to those who are targeted.
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