“Blacklisting” is indeed a striking illustration of how human rights principles have been ignored in the fight against terrorism. The term refers to procedures under which the United Nations or the European Union may order sanctions which target individuals or entities suspected of having links with terrorism. These sanctions include the freezing of financial assets.
The formal basis is a Security Council resolution which eight years ago established a list of individuals suspected of having connections with Al-Qaida, Usama bin Laden and the Taliban1.
The European Union followed suit with its own regulations taking the view that European Community action was also essential in this area. Consequently, EU regulations freeze the funds and other economic resources of persons and entities whose names appear on the UN list.
These measures have affected a number of rights of the targeted individuals, including the right to privacy, the right to property, the right of association, the right to travel or freedom of movement. Moreover, there has been no possibility to appeal or even know all the reasons for the blacklisting – the right to an effective remedy and due process have been eliminated.
Imagine the following scenario. You are placed on the targeted terrorist sanctions list at the UN level, which also means that your financial assets will be frozen within the European Union. You would like to challenge the assertion that you are linked to a terrorist group but you are not allowed to see all the evidence against you.
The de-listing procedure at the UN level allows you to submit a request to the Sanctions Committee or to your government for removal from the list, but the process is purely a matter of inter-governmental consultation. The Guidelines to the Committee make it plain that an applicant submitting a request for removal from the list may in no way assert his or her rights during the procedure before the Sanctions Committee or even be represented for that purpose. The Government of his residence or citizenship alone have the right to submit observations on that request.
This sounds Kafka-esque but it is the reality, at least for the moment. In Sweden, three citizens of Somali origin found themselves on such a list. When I met them they were in despair, not knowing how to raise their case. Their bank accounts had been frozen and neither employers nor social authorities were permitted to provide means for their living.
The listing and de-listing procedures have of course been questioned. In 2007, Council of Europe Parliamentarian, Dick Marty, issued a report which criticised the de-listing procedures and the limited means of appeal available to individuals or entities on the lists.2
Following discussion of the report, the Council of Europe’s Parliamentary Assembly found that “the procedural and substantive standards currently applied by the United Nations Security Council and the Council of the European Union…in no way fulfil the minimum standards laid down ...and violate the fundamental principles of human rights and the rule of law”.3 The Council of Europe’s Committee of Ministers reiterated that “it is essential that these sanctions be accompanied by the necessary procedural guarantees”.4
More than a few have been targeted by these measures. The UN Special Rapporteur on human rights and terrorism stated recently that the listing regime “has resulted in hundreds of individuals or entities having their assets frozen and other fundamental rights restricted”.5
But this may all change, as a result of a landmark decision of the European Court of Justice delivered on 3 September this year.
Yassin Abdullah Kadi, a resident of Saudi Arabia, and Al Barakaat International Foundation, established in Sweden, were both designated by the UN Sanctions Committee as being associated with Osama bin Laden, Al-Qaeda or the Taliban. As a result of being placed on the list of suspects developed by the Committee, their accounts were frozen within the EU in 2001.
The Luxembourg Court found that the European Council regulations which were responsible for freezing their funds and other economic resources had infringed their fundamental rights, notably their right to property and their right to review of those decisions.
It stated that “respect for human rights is a condition of lawfulness of Community acts and that measures incompatible with respect for human rights are not acceptable in the Community”. As a result of the judgment in the Kadi and Al Barakaat case, the EU were given a couple of months in which to remedy the shortcomings of the listing procedure.
What are the lessons from this judgment, and what future action should be taken at the international level?
The importance of the global fight against terrorism should not be underestimated. All Council of Europe Member States are definitely under a duty to fight terrorism and have a positive obligation to protect the lives of their citizens.6 The response to terrorist financing is a global problem and deserves international attention and action.
Yet at the same time, fundamental human rights form the basis of European Community law. Measures taken for the maintenance of peace and security must respect these rights as enshrined in the European Convention on Human Rights and the EU Charter of Fundamental Rights.7
As the Advocate General Poiares Maduro wisely observed in his opinion on the Kadi and Al Barakaat case, “the claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the general principles of Community Law and deprive individuals of their fundamental rights.”8
The ruling of the Luxembourg Court should trigger a change in the Security Council procedures. The changes to the listing and review process, as introduced by Security Council Regulation 1822 are welcome, but they do not go far enough.9
The supreme authority of the Security Council must be protected, but this requires that the Council itself acts in harmony with agreed international human rights standards. There is therefore a need for an independent review mechanism as a last stage of the Security Council decision-making about the listing.
Such procedures should ensure the right of the individual to know the full case against him or her, the right to be heard within a reasonable time, the right to an independent review mechanism, the right to counsel in these procedures and the right to an effective remedy.
The UN Special Rapporteur on human rights and terrorism has argued that such a quasi-judicial body composed of security classified experts, serving in an independent capacity, would possibly be recognized by national courts, the Luxembourg Court, and regional human rights courts as a sufficient response to the requirement of the right to due process.
There may be other ways of responding constructively to the Luxembourg Court ruling. What is important is that human rights deficiencies at the global level are remedied before they are put in place at the European Union level. Inter-governmental bodies such as the UN and the EU must themselves respect the human rights standards on which they are based.
Thomas Hammarberg
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Notes:
1. The Sanctions Committee was set up by Security Council Resolution 1267 (1999) and the consolidated list by Security Council Resolution 1333 (2000). (back...)
2. Report published on 16 November 2007. The Council of Europe’s Parliamentary Assembly's Committee on Legal Affairs and Human Rights also organised a “hearing” on this subject in Strasbourg on 28 June 2007. (back...)
3. Parliamentary Assembly Resolution 1597 (2008). See also Recommendation 1824 (2008) to the Council of Europe’s Committee of Ministers. (back...)
4. Committee of Ministers of the Council of Europe, Reply to the Recommendation 1824 (2008) (Reply adopted by the Committee of Ministers on 9 July 2008). (back...)
5. Statement by Martin Scheinin SPECIAL RAPPORTEUR ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS WHILE COUNTERING TERRORISM 63rd session of the General Assembly Third Committee, 22 October 2008, New York. (back...)
6. Osman v UK, 28 October 1998. (back...)
7. See the recent Resolution of the Parliamentary Assembly of the Council of Europe 1634(2008) on Proposed 42-day pre-charge detention in the United Kingdom. (back...)
8. Delivered on 16 January 2008. (back...)
9. In particular the fact that by 30 June 2010, all the names on the consolidated list at the time of the adoption of the resolution will be reviewed and the posting on the Committee’s website of the narrative summary of reasons for listing for all entities on the list.