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Download File Columbia University Graduate School of Arts & Sciences Human Rights Studies Master of Arts Program The Evolution of the 1267 Sanctions Regime: Challenges & Prospects Rebecca N. Marchetti Thesis Advisor: Professor George Andreopoulos Submitted in partial fulfillment of the Requirements for the degree of Master of Arts (February 2017) Table of Contents Abstract 2 Introduction 3 1267 Sanctions Regime: Past to Present 5 Listing Procedures/Delisting Procedures Refined with respect to Separate Sanctions Regimes: 1988 Taliban Sanctions Regime 11 Listing Procedures/Delisting Procedures Refined with Respect to Separate Sanctions Regimes: 1267/1989/2253 Al-Qaida/ISIL Sanctions Regime 13 Human Rights Deficits 17 Human Rights Deficits: Due Process Rights 18 Human Rights Deficits: Substantive Rights 20 Human Rights Deficits: Equal Protection 22 Challenges/Limited Remedies 24 Criminal Penalties and UN Obligations 60 Conclusions 68 Bibliography 75 1 Abstract Due process rights prevent the arbitrary deprivation of all other rights and liberties and ensure that the process undertaken to arrive at the determination of whether or when rights and liberties must be curtailed or deprived, is impartial and consistent. The creation and operation of special courts and due process mechanisms to combat terrorism has facilitated the perpetuation of counterterrorism measures that violate due process and further enabled the erosion of other internationally recognized human rights. Using qualitative methodology such as case analysis, legal research methods, process tracing, and comparative case studies, this thesis will evaluate the 1267 Regime’s human rights drawbacks, assess the judicial and institutional challenges brought against the Regime and their limited success but will ultimately conclude that the Regime still falls short of international human rights standards. Special judicial and quasi- judicial institutions maintained for the purpose of countering terrorism, such as the 1267 Regime, are founded on due process exceptionalism, making it impossible for them to carry out the purpose for which they were created while upholding human rights. Thus, such paradigms are incompatible with human rights and must not be tolerated. However, the UN’s continued enforcement of the Regime through Resolutions that interrupt states’ compliance with their own human rights obligations may only serve to discredit the Regime and deter states from implementing the measures within its borders, which may nevertheless render the Regime ineffective. 2 Introduction Due process rights, including the right to an effective remedy by a competent national tribunal, the right against arbitrary arrest, detention or exile, the right to a fair and public hearing by an independent and impartial tribunal, the right to the presumption of innocence until proven guilty, and the right against conviction of an offense that does not constitute one under the law are the most central to the discourse on human rights violations resulting from counterterrorism policies. They exist specifically to prevent the arbitrary deprivation of all other rights and liberties and to ensure that the process, undertaken to arrive at the determination of whether or when rights and liberties must be curtailed or deprived, is impartial and consistent. Yet a brief overview of past and present counterterrorism measures, such as intelligence gathering by torture and mass surveillance, arbitrary detention, extraordinary rendition and drone warfare, listing mechanisms such as the no fly, as well as terrorist watch and sanctions lists reveals that the deprivation of due process rights has quite possibly served as the greatest counterterrorism tool. The creation and operation of special courts and due process mechanisms to combat terrorism has facilitated the perpetuation of counterterrorism measures that violate due process and further enabled the erosion of other internationally recognized human rights. Often lacking transparency, impartiality and oversight due to overlapping legislative, judicial, and executive functions, as well as blurred intra-judicial roles of accuser, arbiter and jury, these special courts and quasi-judicial regimes run afoul of internationally and domestically recognized human rights standards. This thesis will focus on one particular exceptional paradigm created in the name of counterterrorism and operating outside of internationally recognized human rights, the 1267 Sanctions Regime. 3 On October 15, 1999, the UN Security Council, following the United States’ lead in passing the July 1999 Executive Order 13129 imposing sanctions on the Taliban regime, unanimously adopted Resolution 1267 as a counterterrorism measure with an eye on incapacitating the Taliban by imposing a limited air embargo and assets freeze pursuant to the Security Council’s authority under Chapter VII of the UN Charter. Resolution 1267 further established a Committee to oversee the implementation of the sanctions, conduct reviews, and provide annual reports to the Security Council. The 1267 Regime has evolved and divided as a result of numerous subsequent UN Security Council Resolutions. Today, the Regime is one that imposes targeted asset freezes, travel bans, and arms embargos on those individuals associated with either the Taliban, Al- Qaida, or ISIL, designated by their respective Committees to have met the vague and/or overbroad listing criteria. The Regime has continued to face both institutional (from within the UN) and external judicial challenges. Limited improvements have resulted from said challenges, but ultimately, those placed on the sanctions list continue to experience violations of their internationally recognized human rights and liberties as set forth in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, and further documented in certain country or region specific Covenants such as the European Convention for the Protection of Human Rights and Fundamental Freedoms. Special judicial and quasi-judicial institutions maintained for the purpose of countering terrorism, such as the 1267 Regime, are founded on due process exceptionalism, making it impossible for such institutions to carry out the purpose for which they were created while upholding human rights. 4 Using qualitative methodology such as case analysis, legal research methods, process tracing, and comparative case studies, this thesis will evaluate the manner by which judicial mechanisms, such as the European Court of Justice, European Court of Human Rights and national courts, as well as non-judicial mechanisms, such as the human rights committee and special procedures, have been used to challenge the 1267 Regime. It will further assess the successful changes stemming from such challenges, but will ultimately detail how despite improvements, the Regime still falls short of international human rights standards. In detailing both the ongoing human rights failures of the 1267 Regime despite attempts made to bring the Regime in line with international human rights and the repeated judicial challenges brought against the Regime, this work will support the position that international human rights and exceptional/extraordinary judicial/quasi-judicial regimes created to combat terrorism are mutually exclusive concepts, and therefore, 1267 and similar regimes cannot be seen as rights-compatible paradigms. 1267 Sanctions Regime: Past to Present On October 15, 1999, shortly following the United States’ passage of Executive Order 13129, the UN Security Council unanimously adopted Resolution 1267 as a counterterrorism measure with an eye on incapacitating the Taliban. “Recalling” state party obligations to prosecute terrorists, “condemning” the “sheltering and training” of terrorists in Afghan territory, and “deploring” the Taliban’s protection of Usama bin Laden as well as his associates and their operation of terrorist training facilities, the Security Council, pursuant to its authority under Chapter VII of the UN Charter, imposed an asset freeze and air embargo on the Taliban, with exception to those funds or flights predetermined by the Security Council to have a humanitarian 5 need.1 Resolution 1267 further established a Committee (the “1267 Committee”) comprised of all Security Council members to oversee the implementation of sanctions, conduct reviews, as well as provide reports, observations, and recommendations to the Security Council.2 On December 19, 2000, Resolution 1333 imposed an arms embargo on the Taliban and banned them from any military assistance, making exception for non-lethal materials and assistance necessary for humanitarian purposes, while at the same time subjected Al-Qaida to an asset freeze and financial embargo.3 Resolution 1333 also requested that the Secretary-General consult with the 1267 Committee in appointing an expert committee “to make recommendations” to the Security Council concerning the monitoring of sanctions, “to consult with” and “report on” Member States regarding sanction implementation and enforcement, and “to review the humanitarian implications.”4 Finally, this Resolution required the 1267 Committee to maintain lists of parties “designated as being associated with Usama bin Laden” and to consider “requests for exceptions” to the sanctions based on humanitarian or protective need.5 An improvement to the Regime came on July 30, 2001 with Resolution 1363, which called for the establishment
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