UN SC Terrorist Listings and Judicial Review: The State of ... · UN SC Terrorist Listings and...

UN SC Terrorist Listings

and Judicial Review:

The State of Play

Martin Scheinin 19 Jan 2012

Professor of Public

International Law, EUI

Former UN Special Rapporteur

on human rights and counter-

terrorism 1

The UN terrorist list

• SC res 1373 (2001) requires sanctions against international terrorists

• SC res 1267 (1999) established smart sanctions against named Taleban in Afghanistan; evolved through SC res 1390 (2002) to a global Al Qaida and Taleban list

• SC res 1988 (2011) is the present Taleban sanctions regime

• SC res 1989 (2011) is the 1267 regime in its current form: Al Qaida terrorist list

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• no UN-level listing

• role of CTC and CTED in assisting implementation of and monitoring compliance with res 1373

• one of the available options presented in the SR 2010 report to the GA is to abolish everything else (A/65/258)

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4




• characterised in A/65/258 as the move to action ultra vires by the Security Council: no sufficient link to a specific threat to peace and security for purposes of Chapter VII of the UN Charter

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6





• less of an ultra vires problem but more due process problems (no Ombudsperson etc.)

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The 1267/1989 list

• The actual list: appr. 250 individuals and 90 entities

• Narrative summaries of reasons

• The resulting sanctions

• Charter obligation under Chapter VII and Article 103

• Travel ban & freezing of assets

• A “criminal charge” (-> fair trial) or administrative measure? • Human Rights Committee: General Comment 32/Sayadi and Vinck v. Belgium

• No judicial review exists over the listing decision by the SC

• Review by national or EU courts

• Not of the actual listing decision by the SC

• But of the national/EU level implementation of the sanctions

• A legal fiction, but one that works (as many others)

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Listing procedure

• Any state may submit a name for the list

• identity of the state not necessarily disclosed

• The 1267 sanctions committee of the SC decides by consensus

• a political/diplomatic body

• also in a written procedure (tacit approval by default)

• any SC member state may block (“hold”) a listing proposal for the duration of its SC membership

• listing is of indefinite duration (even if mandatory review after three years)

• also delisting requires consensus 10

The problem of

evidence

• “The UN” does not have the evidence!

• evidence vs. intelligence

• consensus by a political body is required

• information/arguments may be presented bilaterally

• e.g. 2008-2009 US and Libya were members of SC

• Therefore, the evidence cannot be shared

• With Member States

• With the courts of them or with the EU Council

• With the listed individuals

• EU General Court: you can’t get what you want 11

EU General Court:

Kadi II (T-85/09)

• Abandoned the CFI’s jus cogens approach and grudgingly agreed with ECJ’s approach in Kadi I

• Seeks to ensure the ‘full review’ of the lawfulness of EU measures implementing UN-imposed sanctions

• ‘the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them’ (129)

• OMPI criteria of review (for EU’s 1373 sanctions) extended to UN-imposed 1267 sanctions

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Lisa Ginsborg & Martin

Scheinin: Essex HRR 2011

You can't always get what you want



But if you try sometimes, well you might find:

You get what you need

(Rolling Stones, 1968)

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What do we need?

Steps of mitigation

• Duty to inform the listed individual, SC res 1735 (2006)

• Requirement of narrative summary of reasons, SC res. 1822 (2008)

• Mandatory review 2008-2010 and then every three years, SC res 1822 (2008)

• “Detailed statement of case” required for listing proposals, SC res 1904 (2009)

• Creation of Ombudsperson, SC res 1904 (2009)

But the fundamental problems remained 14

State of play: SC res.

1989 (2011)

• Strengthening of the role of the Ombudsperson

• Delisting proposal accepted by default unless objected to

• Amounts to a quasi-judicial review power

• In the first cases, the proposals have been accepted (still quite few in number)

• Consensus of 1267 Committee required for maintaining the listing

• Reversal of earlier rule on delisting by consensus

• Unless referred to full SC by any member of SC, where normal voting rules govern delisting

• One P-5 member can still block delisting

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Standard of assessment

by the Ombudsperson

• The standard must also reflect the express intent of the Security Council with regard to the purpose of the sanctions namely “that the measures…are preventative in nature and are not reliant upon criminal standards set out under national law” (res. 1989) At the same time, it must be a measure of adequate substance to sustain the serious restrictions imposed on individuals and entities through the application of the sanctions.

• http://www.un.org/en/sc/ombudsperson/approach.shtml

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Not a question of guilt

or innocence

• In this regard, it is evident that the standard applicable in criminal proceedings, nationally, regionally or internationally, is not appropriate for assessing the information and circumstances related to a listing by the Committee. The sanctions are not intended to punish for criminal conduct. Rather, relevant Security Council resolutions demonstrate that the aim is twofold – to hamper access to resources in order to impede, impair, isolate and incapacitate the terrorist threat from Al-Qaida, and to encourage a change of conduct on the part of those who are members of this group or ‘associated with’ it. In these circumstances, the standards applicable to a determination of criminal guilt or innocence are obviously of a different nature and serve a distinct purpose from that of the sanctions.

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Sufficiency, reasonable-

ness and credibility

• At the same time, the sanctions flowing from inclusion on the Al-Qaida Sanctions List are of a significant nature. When implemented on an international scale they have a direct and considerable impact on the rights and freedoms of individuals and entities. They are also of an indeterminate length, with no specified end date. Therefore, there must be some substance and reliability to the information upon which such sanctions are applied to these individuals and entities. Mere “suspicion” or reliance upon statements without any consideration as to underlying information or some assessment of credibility is equally inapt in this context.

• Taking into account the need to balance these factors, in my view, the standard for the Ombudsperson’s analysis, observations and recommendation should be whether there is sufficient information to provide a reasonable and credible basis for the listing.

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Ombudsperson’s

access to information

• Res 1989 encourages states to share confidential information with the Ombudsperson but no legal obligation

• In the first cases, most states have in fact cooperated (25/28)

• A commitment to cooperate (by way of an agreement) exists with a handful of states

• BE, CH, UK, CR, NZ

• The Ombudsperson’s report and recommendation are not public

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Proposed political and

juridical solution

• EU members of the SC will block any listing proposal unless the proposing state provides information that satisfies the requirements set by the ECJ and accepts sharing it with those required by the ECJ

• Does not help persons already listed

• The consensus rule for periodic review must be reversed (automatic lapsing if not renewed)

• Does not fix the problem of referral of delisting proposals to the full SC by any of its members (and a veto by a P-5 member)

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Proposed degree of

deference

• Information rather than evidence to be required

• Modalities of sharing classified information to be worked out ultimately by the ECJ

• Full review of the lawfulness of EU measures is not the same as ‘full evidence’ for the UN listing

• EU courts and national courts to refrain from assessing the implementation of sanctions if there has not been a delisting request to the Ombudsperson

• Perhaps not an effective remedy to be exhausted, or a doctrine of analogous protection but a phase in the imposition of sanctions while they remain provisional 21

Conclusion: We don’t

have what we need

• EU members of SC to block any new or or renewed listing if the proposing state is not willing to disclose sufficient information to satisfy the EU courts

• Possibility of referral to full SC must be excluded, or the voting rules reversed

• Any listing must lapse after a specified period of time, unless renewed by consensus

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