The current UN sanctions regime against terrorists does not secure due process rights. Allowing the International Criminal Court to deal with these cases would be a preferable solution, as it would prevent violations of such rights.
Two years before the 9/11 attacks, the UN Security Council adopted Resolution 1267 (1999), establishing a sanctions regime which required all states to impose a range of preventive measures, including asset freezing, international travel bans and arms embargoes on individuals and entities designated by the Sanctions Committee as being associated with the Taliban.
In the following years, with numerous Security Council resolutions, these measures were extended to individuals, groups and entities associated with Al-Qaeda: there developed an “Al-Qaeda Sanctions List”. Further, the Security Council established guidelines for blacklisting and delisting.
Any state may request the Al-Qaeda Sanctions Committee to add names to the Al-Qaeda Sanctions List. The Committee oversees states’ implementation of the sanctions measures; maintains the sanction list; and considers submissions from states concerning exemptions to asset freezing and travel bans. It makes decisions on listing by consensus of its Members. If consensus cannot be reached, the matter may be submitted to the Security Council by the member concerned. Finally, a listed person or entity receives a narrative summary of the reason of the listing, which does not include any information that the designating state considers sensitive.
The sanctions significantly interfere with the fundamental right to freedom of movement, property rights and the right to privacy in all its manifestations. Further, the duration of the sanctions is not determined – so in most cases it is permanent. The procedure is also entirely political, lacking any judicial control. The Committee is composed of diplomats, rather than independent judges. An individual is not allowed to intervene in the proceedings to prove his innocence, and often receives an unduly narrow summary of the decision. There are clear violations of the “fair trial” rights set up by article 14 ICCPR, which depend on the independence of a decision-maker, accessibility and power to grant an effective remedy.
Due to criticism from many commentators, NGOs, and UN Member States, in 2009 the Security Council introduced an independent Ombudsperson to assist the Committee in its consideration of delisting requests. The Ombudsperson investigates delisting requests, and prepares a “comprehensive report.” This report contains formal recommendations to the Committee whether to accept or reject a delisting request. If the Ombudsperson recommends against retaining a listing, then that individual or entity is delisted in 60 days unless the Committee decides unanimously to retain it or the question is referred to the Security Council.
The Special Rapporteur in his 2012 report concluded that “the Al-Qaeda sanctions regime continues to fall short of international minimum standards of due process”. He suggested extending the powers of the Ombudsperson, whose decision must be accepted as final by the Al-Qaeda Sanctions Committee and the Security Council.
In order to uphold due process rights, the best solution would be to bring the listing and delisting procedure within the jurisdiction of the International Criminal Court. This would ensure that decisions are made by independent judges on the basis of clear norms which would set the standard for cooperation with Al-Qaeda. Further, individuals would be able to intervene in both procedures and challenge the evidence put forward by the states. The Court would also provide a clear and complete reason for its decision in each case.
Respecting due process rights would also facilitate the implementation of sanctions in the EU. The ECJ would not itself need to undertake a complete review – such in the Kadi II case – as long as the ICC maintained this elevated standard of protection.
Respecting human rights is a necessary condition for fighting terrorism, as violations of these rights will only create an atmosphere of resentment. The existing regime does not respect human rights to the required extent. However, the suggested amendments could hopefully facilitate their protection.