Wednesday, June 16, 2010

A path to fairness in the operation of the Security Council's "terrorist blacklist"

(Delighted to welcome back alumna Kate Barth, who's just graduated magna cum laude from Penn Law, is studying for the bar, and is set to become an associate at the New York office of Allen & Overy this fall. Treating an international mechanism discussed in this news article, Kate's guest post today is based on her "When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform", which she and co-author Jared Genser just published in the Boston College International and Comparative Law Review)

In 2001 the name of one Yassin Abdullah Kadi, a Saudi Arabian businessman, was added to the United Nations' Consolidated List, also known as the “terrorist blacklist.” However, unlike the hundreds of other names on the list, Yassin Abdullah Kadi successfully challenged his inclusion in a European court. The European Court of Justice (right) held in 2008 that the due process violations surrounding Kadi’s inclusion on the list were contrary to the constitutional guarantees of the European Community treaty and annulled the EU regulation which implemented the UN-imposed blacklist. (Prior IntLawGrrls post.) The Kadi ruling potentially placed the EU in breach of international law and sparked a firestorm of debates as to when a domestic or regional court should violate international law for human rights considerations.
The UN blacklist was established in 1999 by Security Council Resolution 1267. That resolution also imposed upon every UN member state the obligation of placing individual sanctions (in the form of asset freezes and travel bans) on the persons and groups added to the newly-created blacklist. Resolution 1267 did not provide safeguards for ensuring that an individual was properly included, nor did it allow those listed to challenge their inclusion.
In thus making individuals rather than states the target of UN resolutions, the Security Council (below right) found itself heavily criticized by commentators and courts alike for depriving individuals of their due process rights. Only since the ECJ's Kadi decision, however, has this criticism solidified into a concrete threat to the Council's ability to coordinate a unified antiterrorism regime. If domestic and regional courts remain unwilling to enforce Security Council resolutions, the security framework may fall apart.
To the Council's great credit, it has not been deaf to the critique of the 1267 regime. To the contrary, subsequent resolutions improved listing procedures and granted individuals the right to personally request delisting. Last December, the Council even adopted Resolution 1904, which established a temporary Office of the Ombudsperson, a position filled this month by Canadian Judge Kimberly Prost (left), who's been an ad litem judge at the International Criminal Tribunal for the former Yugoslavia. (Prior IntLawGrrls post.) The Ombudsperson is responsible for ensuring that an individual could bring a delisting request, and remain appraised of its status.
Unfortunately, problems persist. For example:
► Individuals still cannot participate in presenting their own case, are not privy to the evidence against them, and have no assurance of impartial decision-making.
► Post-Resolution 1904, courts have continued to quash the regulations which implement the terrorist blacklist while citing due process concerns.
It is clear that the Security Council hasn’t gone far enough in acknowledging the world’s concerns.
Of course, guaranteeing respect for due process isn’t the only responsibility the Council must juggle when considering the 1267 regime; it must also ensure that it creates an effective antiterrorism regime and that it safeguards its own position as the primary guardian of international security. Thus, while many of the suggestions for the 1267 regime which have been tossed out over the past 11 years might solve the due process issue -- e.g., leaving initial listing decisions entirely in the hands of member states, or allowing state judicial review of UN listings -- these remedial mechanisms simply do not address the Council’s other fundamental concerns.
There is one suggestion which, while not perfect, does a fairly good job of balancing due process, security, and Security Council primacy concerns.
The Council should create an internal court which is open only to listed individuals -- not sanctioned states -- and which has the power to issue binding delisting orders. The judges on the court must be independent decision-makers with a specialty in handling sensitive intelligence.
If domestic and regional courts are able to look to the United Nations and see that the listed individuals have their due process concerns met there, such courts will no longer feel the need to take matters into their own hands by annulling the domestic implementing regulations.

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