Are the Security Council’s efforts to combat the financing of terrorism violating fundamental rights?
by Christopher Michaelsen
© SCOPE Magazine, Spring 2011
In the early 1990s, Somalia was a country rapidly descending into chaos. Political upheaval, combined with the effects of civil war and a severe drought, had led to the collapse of the Somali government and banking system, and to a general breakdown in the social structure. Amidst this turmoil, a charity organisation, the Al Barakaat Foundation, stepped in to provide aid to the Somali people. It set up a system that enabled Somali immigrants in the United States, Europe, and elsewhere to send a significant part of their earnings back to their families. Over the next few years Al Barakaat grew to become Somalia’s largest business group, with subsidiaries involved in banking, telecommunications, and construction. Close to eighty percent of Somalis depended on its services.
Then came 9/11, and with it frantic efforts by the U.S. and other governments to combat the financing of terrorism. Al Barakaat quickly found itself under suspicion of supporting Al-Qaeda. In early November 2001, President George W. Bush declared that the foundation was “a group of money-wiring and communication companies owned by a friend and supporter of Osama bin Laden.” He announced that the Treasury Department would force Al Barakaat to close. This, stated Bush, would send “a clear message to global financial institutions: You are with us, or you’re with the terrorists. And if you’re with the terrorists, you will face the consequences.” U.S. officials now acknowledge that the evidence of Al Barakaat backing terrorism was rather flimsy.
Nevertheless, one of the immediate results of the U.S. allegations was that Al Barakaat was included on the United Nations 1267 sanctions list maintained by a sub-committee of the Security Council. Initially established by the Security Council as a response to the bombings of the U.S. embassies in Kenya and Tanzania in 1998, the 1267 sanctions regime required all states to freeze the assets of any individual or entity associated with Al-Qaeda, Osama bin Laden and/or the Taliban as designated by the 1267 Committee.
The listing of Al Barakaat had severe consequences. It effectively deprived Somalia of its most significant employer and financial institution, and cut Somalis off from the remittance payments on which they relied. In fact, the freezing of Al Barakaat’s assets worldwide resulted in the collapse of economic activities in Somalia as thousands employed by the foundation had to stop working, while those receiving money from relatives and friends abroad struggled to make ends meet. As Somalia’s ambassador to the United Nations, Ahmed Abdi Hashi, put it in 2003, “depositors cannot access their funds. Businessmen cannot do business. Many are going bankrupt.”
Yet Al Barakaat was neither informed about the exact reasons for its inclusion in the UN’s list, nor was it given any opportunity to prevent the listing by demonstrating that its inclusion was unjustified. What is more, even after its assets had been frozen, the foundation’s ability to challenge the listing in a court of law was severely limited. This was mainly due to the fact that UN Security Council resolutions enjoy primacy over other rules of international law, making it difficult to submit them to any form of judicial review.
The case of Al Barakaat was not an isolated incident. While the foundation was eventually removed from the list in 2009, as of 28 April this year 487 persons and entities remain listed. Indeed, the Security Council continues to consider the 1267 sanctions regime as a cornerstone of the UN’s counter-terrorism efforts. This was recognized by the Council, most recently, in resolution 1904. Emphasizing that sanctions were “an important tool under the Charter of the United Nations in the maintenance and restoration of international peace and security,” the Council stressed the need for “robust implementation” of the 1267 regime as a “significant tool in combating terrorist activity.”
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[private]Nonetheless, the 1267 sanctions regime and its mechanism for the listing and de-listing of individuals and entities known or believed to be associated with Al-Qaeda or the Taliban remain highly controversial. As Richard Barrett, Coordinator of the 1267 Committee’s Monitoring Team, acknowledged, the controversies mainly stem from the fact that the sanctions regime, although preventive by design, is punitive by impact. Persons and entities listed have not necessarily committed any illegal act. Listings may occur on mere suspicion of associating with Al-Qaida or the Taliban. States may request that the 1267 Committee add names to the UN list and the Committee also considers submissions by states to remove names from it. In both instances the final decision rests with the Committee which makes all its decisions by consensus.
In contemporary jurisprudence, measures such as the freezing of assets constitute serious criminal sanctions which accordingly warrant proper safeguards, including judicial review and effective remedies. The 1267 listing and de-listing procedure, however, does not provide for judicial or even quasi-judicial protection. Thus, the regime continues to be criticized for its lack of respect for internationally recognized standards of due process, including the right to a fair hearing, the right to judicial review, and the right to an effective remedy. As a judge of the Federal Court of Canada recently put it, the 1267 sanctions regime’s situation for a listed person or entity is “not unlike that of Josef K. in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.”
In spite of these formal limitations, legal cases have been presented to national courts in Belgium, Canada, Italy, Switzerland, the Netherlands, Pakistan, Turkey, the United Kingdom, Germany and the United States. Several cases have also been brought before the Courts of the European Communities in Luxemburg, challenging the implementation of the 1267 sanctions regime within the European Union. In these cases, which included that of Al Barakaat, the European Court of First Instance upheld the legality of the EU regulations implementing the 1267 sanctions regime and found that it generally lacked the power to judicially review resolutions of the UN Security Council, as those have primacy over any other rule of international law.
Nevertheless, these same findings were overturned by the European Court of Justice in the landmark appeal cases of Kadi and Al Barakaat in September 2008. The Court found that the Courts of the European Communities did have jurisdiction to review the implementation of UN Security Council resolutions, and furthermore, that the contested regulation implementing the 1267 regime violated fundamental human rights as recognized by Community law:
[…]the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.
As far as Al Barakaat’s listing was concerned, the Court held that the foundation’s plea alleging breach of their rights of defence, especially the right to be heard, and of the principle of effective judicial protection, was “well founded”.
The Kadi and Al Barakaat decision marked the first time that the European Court of Justice confirmed its jurisdiction to review the lawfulness of a measure giving effect to UN Security Council resolutions, and, furthermore, annulled an EC measure implementing a UN Security Council resolution for violating fundamental principles of Community law. While this annulment did not directly affect the inclusion of Mr. Kadi and Al Barakaat on the UN list, the decision compellingly demonstrated the need for a comprehensive revision of the 1267 regime’s listing and de-listing mechanisms with a view to ensuring fair and clear procedures.
Yet, in spite of the obvious shortcomings of the 1267 sanctions regime and the legal blows to its implementation in the European Union, the Security Council has been slow in addressing the due process criticisms and in initiating reform. It was not until December 2009, that the Council introduced the first significant changes to the de-listing procedure by establishing an Ombudsperson mechanism and by appointing a former Canadian prosecutor, Kimberly Prost, to the post. The Ombudsperson is tasked to deal with de-listing requests from targeted entities and individuals in a three-step process.
In a first step, the Ombudsperson is mandated to acknowledge the receipt of the de-listing request, inform the petitioner of the general procedure for processing de-listing requests, and answer specific questions from the petitioner about 1267 Committee procedures. The Ombudsperson then presents a written update to the 1267 Committee on progress to date, including details regarding which States have supplied information. The Ombudsperson may extend this period once for up to two months if she assesses that more time is required for information gathering, giving due consideration to requests by UN member states for additional time to provide information.
In a second step the Ombudsperson facilitates a two-month period of engagement, which may include dialogue with the petitioner, the 1267 Committee, and UN member states. At the end of this period, the Ombudsperson drafts and circulates to the 1267 Committee a comprehensive report that summarizes, and specifies the sources of, all available information that is relevant to the de-listing request. Based on an analysis of this information and on the Ombudsperson’s observations, the report then sets out for the Committee the principal arguments concerning the de-listing request.
In a third and final step, the 1267 Committee has thirty days to review the Ombudsperson’s comprehensive report. It is then the responsibility of the chair of the Committee to place the de-listing request on the Committee’s agenda for consideration. Yet even if the Ombudsperson recommends de-listing, the Committee is not obliged to follow this recommendation. A single dissenting vote would be sufficient to prevent de-listing of a targeted individual or entity. In effect, the Ombudsperson’s report is of an advisory nature only.
The establishment of the Ombudsperson office constitutes a significant improvement to the existing listing and de-listing procedure. Nevertheless, the mechanism still fails to fulfill international legal requirements of effective due process. In particular, the Ombudsperson does not have the power to grant appropriate relief, as the final decision on whether to de-list or not rests with the Security Council’s 1267 Committee. As a consequence, in October 2010 the European General Court (the former Court of First Instance) found in the case of Kadi II that the creation of the Office of the Ombudsperson could not be “equated with the provision of an effective judicial procedure for review of decisions of the  Sanctions Committee”. The Court stated that, in essence, the Security Council had still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining actions, as regards matters of law and fact, against individual decisions taken by the 1267 Committee. Similarly, the Office of the Ombudsperson did not affect the principle that removal of a person or entity from the UN list required consensus within the 1267 Committee.
The Court also pointed out that the evidence which may be disclosed to the targeted person or entity remained entirely at the discretion of the State which proposed the inclusion, and there was no mechanism to ensure that sufficient information be made available to allow them to defend themselves effectively. In fact, a listed person or entity did not even need to be informed of the identity of the State which requested their inclusion on the UN list in the first place.
The Court’s decision in Kadi II represents another significant blow to the 1267 sanctions regime. So why has the Security Council failed to address such fundamental due process concerns and introduce fair and clear procedures for those included in the 1267 list?
It seems, first and foremost, that there is a lack of political will among Security Council members to initiate reform. While none of them have made any official statements to this extent, it is clear that the Council members are reluctant to agree to any kind of reform that would, as they see it, take away the authority of the Security Council in matters relating to international peace and security. But other causes may lie behind this lack of will. One may be the perception that the due process shortcomings of the 1267 sanctions regime are negligible, because they only affect a relatively small number of alleged terrorists and their associates. There are much more serious human rights violations being committed every day, they may reason, so why not focus on other, more urgent, policy questions?
This perception, however, is fundamentally flawed. The shortcomings of the 1267 sanctions regime do not only affect listed individuals and entities but have much broader implications. They highlight fundamental problems of accountability relating to the Security Council as an organ of the United Nations. In any legal system, even the international legal system, a body exercising power should bear the responsibility for the exercise of this power. Yet, the discretionary powers of the 1267 Committee remain virtually unrestrained and uncontrolled. While this is, of course, a general problem affecting most international bodies, the case of the 1267 regime demonstrates the deficiency in accountability in a particularily worrisome manner.
The shortcomings of the 1267 regime also demonstrate that the “individualization” of Security Council measures—that is, targeting private individuals and entities directly—has not been accompanied by the creation of a means for those targeted to appeal the measures imposed on them. Thus the debate is not only about justice for the Al Barakaat Foundation or other listed individuals and entities. As Dutch legal scholar Larissa van den Herik has noted, it is also “about the system that we want to build: if we want to go beyond the State and target the individual, we should also give the individual standing to defend himself.” The issue is thus closely related to the Security Council’s credibility. As the Council is becoming more and more concerned with human rights violations, it should practice what it preaches and operate in line with decent procedures.
Lack of political will to initiate comprehensive reform, however, is just part of the story. Political sensitivities and practical obstacles have also prevented progress. Among the former is the problem of independent review of Security Council decisions. It is highly unlikely that the Security Council will be prepared to accept a fully independent judicial authority to scrutinise its actions. Such a review would, as the Council sees it, erode its absolute authority under the UN Charter to take action on matters affecting international peace and security.
Practical obstacles include evidentiary problems: many listing decisions are based on intelligence information which states are reluctant or unwilling to share or submit to scrutiny. This issue is part of a classic challenge faced in the context of judicial review and counter-terrorism, that is, whether and to what extent classified intelligence information can be used or disclosed in court. It is beyond question that the protection of sensitive sources and of important intelligence information is a legitimate State interest. However, there are mechanisms available to address this issue in a way that also maximizes concern for fair trial rights and due process guarantees, including closed court proceedings and security-cleared counsel.
Though much of the debate over the 1267 sanctions regime has focused on technical and legal issues, its implications are farther reaching. In essence, it raises fundamental questions about the Security Council’s role in strengthening a rules-based international system and maintaining international peace and security under the rule of law. These include questions about the legal context within which the Council operates and the extent to which the Council must itself adhere to international human rights law.
It is in this respect that the case of the 1267 sanctions regime is most paradoxical. The United Nations has traditionally been regarded as a promoter and guarantor of human rights rather than as a perpetrator of human rights abuses. The UN Charter requires the organs of the organisation to promote and encourage respect for human rights (Articles 1 (3) and 55 (c)), and to assist Member States in the realization of human rights (Article 13 (1b)). Most would agree that the UN has, on the whole, lived up to these promises. It has fostered an international culture of human rights by facilitating the adoption of key human rights treaties and by contributing to important developments in soft law. Moreover, UN organs, sub-organs, and other treaty-based bodies have played a crucial role in monitoring the human rights performance of member states.
Yet in the context of counter-terrorism, the Security Council has itself become an abuser of human rights. Despite very clear messages from European courts that the 1267 sanctions regime violates fundamental human rights, the Council has so far failed to initiate comprehensive reform. The next opportunity for the Council to remedy its failures comes in June this year when the 1267 sanctions regime is up for review. It remains to be seen whether the permanent members of the Council are ready to re-engage with the issues in any meaningful way. The situation does not look promising. In particular, there seems to be a misconceived view among key Security Council members that the 2009 establishment of the Office of the Ombudsperson is sufficient for now.
However, a substantial re-engagement with the 1267 regime’s shortcomings, combined with the realization that the protection of due process standards lies at the heart of any successful counter-terrorism strategy, is crucial to credible and sustainable counter-terrorism efforts by the UN. As the fight against international terrorism enters its second decade, the Security Council cannot afford to waste another opportunity to fix its sanctions regime. It needs to set an example that demonstrates that the objectives of combating terrorism and protecting human rights are not mutually exclusive.
Dr. Christopher Michaelsen is a Senior Research Fellow at the Faculty of Law of the University of New South Wales (UNSW) in Sydney, Australia. He teaches and specialises in public international law, human rights, and international security. Prior to joining UNSW, he served as a Human Rights Officer (Anti-Terrorism) at the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe in Warsaw, Poland. http://www.law.unsw.edu.au/staff/MichaelsenC/