The UN terrorist blacklisting regime is one of the counter-terrorism measures that most clearly violates fundamental rights. The regime targets individuals, entities and the supporting networks of those who are suspected to be contributing to terrorism. Once on the list, they face asset freezing and the imposition of a travel ban for an indefinite period without being able to appeal the decision in an independent court.

To defuse growing criticism regarding the blacklisting regime’s lack of basic due process rights, a number of reforms have been introduced, the most important of these being the introduction of an Ombudsperson. However, the Security Council seems unwilling to take the necessary steps to make the system compatible with basic human rights. This would include extending the powers of the Ombudsperson and making it an independent and impartial reviewing body at UN level.

Background

Targeted sanctions against specific groups or individuals emerged after the United Nations began increasingly to refrain from using state sanctions. The latter had been applied to Iraq in 1990 with disastrous consequences for the population but with little impact on the regime.

The current terrorism proscription regime stems from UN Security Council Resolution 1267 (1999), which was adopted on the basis of Chapter VII following the U.S. embassy attacks in Kenya and Tanzania. The objective of UN Security Council Resolution 1267 was to put pressure on the Taliban to allow the extradition of Osama bin Laden. Various other resolutions have followed and extended the blacklisting regime to individuals and entities believed to be linked to Al-Qaida or ISIL (Da’esh). If a person or entity is listed, UN Member States are obliged to freeze their assets and to impose a travel ban.

An opaque procedure

The Sanctions Committee, the subsidiary organ of the Security Council that oversees the various sanctions regimes, is a highly political body that is significantly influenced by diplomatic interests. Any UN Member State can submit names of individuals, entities and groups for inclusion on the lists. The Sanction Committee usually adopts listing decisions with little or no debate, basing them in most cases upon secret intelligence material that the nominating State does not wish to disclose entirely.

Originally, there was no mechanism for getting an individual, group or entity off the consolidated lists. Facing widespread criticism, however, the Security Council has engaged in a process of ongoing dialogue about the system, and certain reforms have been made over the years.

The most significant reform came in 2009, when the Security Council introduced the Office of the Ombudsperson in response to the landmark Kadi I judgement by the European Court of Justice. This highlighted the importance of the requirement of sufficient information and stated that blacklisting and asset-freezing decisions must be subject to full review at the European level.

The task of the Ombudsperson is to assist the Sanctions Committee in considering de-listing requests. Since 2011, states have been required to forward all information, including confidential information, to the Ombudsperson, who can then ensure that only highly confidential material is withheld and that all other information is given to the individual or entity concerned. The provision of reasons is a key factor in allowing the individuals to challenge the allegation against them in court. In addition, the Ombudsperson has been able to make de-listing recommendations with regard to the sanctions lists for Al-Qaida and – also now ISIL (Da’esh) – following a request from an individual or entity. Committee Members have to decide by consensus if they wish to override de-listing recommendations by the Ombudsperson.

The case of Mr Darraji

The blacklisting of Mr Kamel Darraji, a Tunisian resident of Italy, might suffice to exemplify the opaqueness of the procedure. The Italian and US governments nominated him for inclusion on the list, alleging that he was ‚associated‘ with an Al-Qaida terrorist cell in Italy. The Members of the Sanctions Committee concurred with this request in 2004 and, as a result, his funds were frozen and a travel ban imposed on him. Neither the governments involved nor the UN Sanctions Committee ever provided Mr Darraji with any evidence regarding his listing.

In 2005, Italian courts found him not guilty of the allegations that he was part of a terrorist cell. In 2009, Wikileaks revealed that even the US government had no evidence to this effect:

“After careful and detailed review and analysis of all available information, the USG [US government] has determined that it currently lacks information sufficient to conclude that DARRAJI continues to engage in the activities for which he was originally listed or other activities that would provide a basis for continued listing.”

Despite this, Mr Darraji remained on the list. The UN Sanctions Committee only removed him from the terrorism blacklist in May 2012, after the European Center for Constitutional and Human Rights, one of the partner organisations of the Humboldt Law Clinic Grund- und Menschenrechte (HLCMR), became involved and fought for his de-listing. Nonetheless, Mr Darraji still appears on the Specially Designated Nationals and Blocked Persons List administrated by the US Department of Treasury.

Still no effective remedy at the UN level

Although Mr Darraji was taken off the list thanks to a de-listing recommendation by the Ombudsperson, the outcome of his request depended largely on politics. The lack of an effective remedy at the UN level is the key issue in this regard, because the role of the Ombudsperson is still some way from that of an independent and impartial reviewing body, since the final decision remains with the Sanctions Committee. The same committee that decides about the listing is responsible for responding to requests for removal from the list. Or, to put it in the words of the Canadian Federal Court: “The accuser is also the judge.”

Despite steps in the right direction, the reform process has failed to make the sanctions regime compliant with international law. Consideration should be given to attributing full de-listing competence to the Ombudsperson, in order for it to become an institution that provides a fair process to the petitioners. In addition, due process rights might also be more effective if the Ombudsperson was able to review listing decisions prior to their implementation. Moreover, the mandate of the Ombudsperson should be extended to all sanctions regimes, such as the “Taliban Sanctions List,” even if influential UN member states try to prevent this from happening.

If basic standards are fulfilled, national or regional courts will likely recognise the decisions made by the UN Sanctions Committee, and courts may then require the de-listing procedure to be exhausted with the Ombudsperson before they can exercise their jurisdiction.