Targeted Sanctions and Human Rights. Challenging the UN Security Council's 1267 Regime

TABLE OF CONTENTS

Abstract

1. Introduction

2. UN targeted sanctions and the 1267 Al-Qaida and Taliban Sanctions Regime
2.1 Resolution 1267 and the Al-Qaida and Taliban Sanctions Regime
2.1.1 The 1267 Sanctions Committee
2.1.2 Listing and delisting procedures
2.3 The European Union's implementation of UNSCR 1267

3. Targeted sanctions regimes and human rights
3.1 Fundamental human rights
3.2 Effective access to justice and due process of law
3.3 Challenging targeted sanctions under the 1267 regime
3.3.1 Challenging targeted sanctions within the UN system
3.3.1.1 The Office of the Ombudsperson
3.3.1.2 The Human Rights Committee
3.3.2 The European Court of Justice

4. Assessment of available means to challenge targeted sanctions and alternatives to the current 1267 Regime
4.1 Main achievements and remaining obstacles
4.2 Some reform proposals

5. Concluding remarks

Bibliography

ABSTRACT

This study addresses the problems raised from a human rights and due process perspective by the UN Security Council's targeted sanctions regime established under Resolution 1267 within the international counter-terrorism framework. Therefore, this paper will examine available means for individuals and entities sanctioned under the 1267 regime, to challenge the decisions of the UN Security Council (and the Council of the European Union) that directly affect their human rights. The extent to which the current 1267 regime provides - after all reforms - ef­fective access to justice and due process of law, which are key elements of adequate human rights protection, will be evaluated. Hereby the study will concentrate on the possibilities firstly within the UN system itself and secondly before European Courts. Although the challenges have brought achievements within the system, fundamental obstacles remain. In conclusion, an overall appraisal of the issues covered in the study will be given, as well as recommenda­tions for alterations to the current sanctions regime.

1. INTRODUCTION

Targeted sanctions on individuals and entities are increasingly utilized by the United Nations (UN), especially in the area of international counter-terrorism. Shortly after the intro­duction of the first such a regime by the UN Security Council Resolution 1267 (1999) concern­ing Al-Qaida and the Taliban and associated individuals and entities, concerns were raised about the protection of human rights of those targeted. Despite several reforms triggered by benchmark judgments trying to tackle the issue of human rights protection of individuals in­cluded on the consolidated list, the current procedures of listing and delisting still fall short of meeting basic human rights standards.¹ In particular, legal scholars and human rights activists have pointed out that access to justice and due process - both procedural rights in the heart of human rights protection - are denied for sanctioned individuals and entities.²

The following study will address the problems raised from a human rights and due process perspective by UN Security Council's (UNSC) targeted sanctions within the interna­tional counter-terrorism framework. The purpose of this paper is to examine which means are available for targeted individuals and entities under the so-called ‘1267 regime', to challenge the decisions of the UNSC (and the Council of the European Union) that directly affect human rights. By analysing the available means, the extent to which the current 1237 regime provides - after all reforms - adequate human rights protection will be evaluated . Hereby the study will concentrate on the possibilities to challenge targeted sanctions firstly within the UN system itself and secondly before European Courts. Selected benchmark cases will be examined which raised public awareness on critical human rights issues, established important legal principles and led to reforms of the listing and delisting procedures. Although the challenges have brought achievements within the system, fundamental obstacles remain, therefore alternative reform approaches to the current system will be proposed. A fully analysis of the debate is beyond the scope of this study hence, the focus will be on the 1267 regime. However, procedures of the 1267 regime are representative of the practices of other sanctions regimes as well.

The structure of this study is as follows. Section 2 gives a brief overview over the gen­esis of UN targeted sanctions and presents the UNSCR 1267 as the oldest and most challenged international resolution on targeted sanctions against individual and entities. Thereby, areas of concern will be the work procedures of the 1267 Sanctions Committee as well as the regime's partly reformed listing and delisting procedures. Further, the implementation of the UNSCR 1267 in the European Union's (EU) legal order will be elaborated. In Section 3, the possible implications for human rights due to listing on the consolidated list, respectively the EU terror list and subsequently the sanctioning will be exanimated, with a specific focus on the right to effective access to justice and due process. Moreover, this section conducts an analysis of available means to challenge the UNSCR 1267 within the UN system and before European Courts. Section 4 highlights the achieved progresses and sums up remaining obstacles, ad­dresses problems which could not be solved even after all the reforms. In addition, it encom­passes an outline on alternatives to the current system. In conclusion, an overall appraisal of the issues covered in the dissertation warrants a targeted sanctions system on an international level which fully respects human rights and guarantees the access to justice.

^{The Security} Council has a very heavy responsibil­ity to promote justice and the rule of law in its efforts to maintain international peace and security. ³

2. UN TARGETED SANCTIONS AND THE 1267 AL-QAIDA AND TALIBAN SANCTIONS REGIME

The widespread criticism about the adverse humanitarian impact of comprehensive economic UN sanctions on Iraq, enforced in 1990, has resulted in the creation of innovative reforms within the UN sanctions policy.⁴ Subsequently, a shift has been introduced, away from comprehensive sanctions, towards ‘targeted' sanctions.⁵

Today, all UN sanctions are targeted sanctions.⁶ Adopted through UNSCRs at the in­ternational level and enforced through the implementation by the EU at the regional and UN Member States at the domestic level, targeted sanctions can be defined as measures

aim to target and apply coercive pressure to all individuals, groups and supporting networks of those who are perceived by the Sanctions Committee to be contributing to the problem that the sanctions seek to address.⁷

Not entire countries and societies should be negatively affected; instead, only carefully selected individuals and entities are sanctioned in order to change, stare or control their political behav- iour.⁸ This shift in sanctions practice reflects the determination ‘to make the sanctions policy more ethical, legally secure and justifiable then previous comprehensive sanctions'.⁹ A distinc­tion can be made between three different categories: sanctions targeted at individuals, groups and entities, those targeted at specific commodities or sector of an economy, and those targeted at particular regions in a country.¹⁰ However, this study will limit the focus to targeted sanc­tions against individuals and entities.

Since the late 1990s, the trend goes toward using targeted sanctions for purposes like counter-terrorism, non-proliferation, democratisation and protection of civilians and human rights.¹¹ Typically, counter-terrorism targeted sanctions are financial sanctions and travel bans, and occasionally also arms embargos.¹² The focus of this study will be on targeted financial sanctions, as the requirement to ‘freeze without delay the funds and other financial assets or economic resources of designated individuals and entities'.¹³ In general, however, the term ‘targeted financial sanctions' means both, asset freezing as well as prohibitions to prevent funds or other assets from being made available, either directly or indirectly, for the benefit of des­ignated persons and entities.¹⁴

2.1 Resolution 1267 and the Al-Qaida and Taliban Sanctions Regime

The UNSC passed Resolution 1267 (1999) as an answer to the 1998 Al-Qaida bombing of two US embassies in Africa.¹⁵ In order to exert pressure on the Taliban to extradite Usama bin Laden to the ‘appropriate authorities' and to stop them from using Taliban-ruled territo­ries in Afghanistan as harbours,¹⁶ the resolution calls upon all States to

"Freeze funds and other financial resources ... owned or controlled directly or indirectly by the Taliban ... and ensure that neither they nor any other funds orfinancial resources so designated are made available . to or for the benefit of the Taliban or any undertaking owned or con­trolled, directly or indirectly, by the Taliban.'¹⁷

The Al-Qaida and Taliban sanctions regime was substantially modified by a number of UNSCR's in order to strengthen and expand the original sanctions regime.¹⁸ Three years after the first resolution on targeting individuals and entities, the scope was broadened by UNSCR 1390 (2002), which called for targeted sanctions against any individuals, groups, undertak­ings and entities "associated with' Usama bin Laden, Al-Qaida and the Taliban, who have "participated in the financing, planning, facilitating and preparation or perpetration of terrorist acts or in supporting terrorist acts'¹⁹ However, in the course of UNSCR 1989, adopted in 2011, the sanctions against individuals and entities suspected to be associated with Al-Qaida were separated from those believed to be associated with the Taliban.²⁰ For purpose of this study, the concern will be on Resolution 1267 (1999). Nevertheless, since most of the other UN targeted sanctions committees, which are in charge of the administration of the lists of terror suspects, have relied on 1267 Committee's precedents, the procedures of the 1267 Committee are representative of the practise of other sanctions committees as well.²¹

2.1.1 The 1267 Sanctions Committee

The 1267 Resolution has been adopted by the Security Council, under Chapter VII of the UN Charter, as a preventive measure in the fight against terrorism.²² It is thus binding upon all UN Member States. While States are bearing the primary responsibility to implement targeted sanctions, the Security Council set up a Sanctions Committee, known as the Al- Qaida and Taliban Sanctions Committee (1267 Committee) also under UNSCR 1267 in order to observe the implementation.²³ As a subsidiary body consisting of all member to the Secu­rity Council, the 1267 Committee's administrative task is to effectively implement the re­strictive measures by drafting and administrating a regularly updated list, the so-called ‘Con­solidated List', of individuals and entities ‘associated with' Al-Qaida and the Taliban that were to be sanctioned.²⁴

2.1.2 Listing and delisting procedures

The 1267 Committee is responsible for the listing, the so-called ‘blacklisting', and delisting procedures of the consolidated list, regulated by the ‘Guidelines of the Committee for the Conduct of its Work'.²⁵ After the pressure of several UN Member States, claiming a lack of transparency and due process in the present listing and delisting procedure, the Secu­rity Council agreed to provide some legal safeguards; subsequently, the 1267 Committee has been undergone a ten-year-long period of several reforms.²⁶ A reform in 2005 granted all members of the UNSC (not solely the permanent members) a veto on names being put on the list.²⁷ Furthermore, the UNSC has enhanced the notification process, established criteria for listing, requiring the release of statements and narrative summaries of reasons for listing and regular reviews of listing for currency and accuracy.²⁸ Moreover, it established procedures giving designated persons the possibility of addressing a delisting request through the UN Secretariats "Focal Point' which was replaced - pursuant to UNSCR 1904 (2009)²⁹ - by the "Office of the Ombudsperson'. ³⁰ The latter will be scrutinised in sub-section 3.3.1.1 of this study.

The procedure operates based on submissions for listing from member States, required to provide a "statement of case' in support of the listing with as much details as possible re­garding the grounds of listing.³¹ The Guidelines emphasise however, that "^a criminal charge or conviction is not a prerequisite for listing as the sanctions are intended to be preventive in nature.'³² It means in effect, that as long as the 1267 Committee consents with the request, an individual or group can be listed on the suspicion of only one UN Member State.³³ The process of listing has earned fundamental criticism regarding the provided information on which the blacklisting is proposed.³⁴ The formal basis of information is often publicly available, such as media reports or company registers.³⁵ However, secret intelligence material or confidential material often lies behind the supporting evidence, and it is argued that, with regard to terrorist suspects, the latter can be ‘assumed almost invariably'. ³⁶ Consequently, the sanctions commit­tees as such ‘have rarely, or ever, evaluated the “evidence” that the named person is engaged in activities involving a threat to international peace and security'.³⁷

Regarding the delisting procedure, the designated individuals or entities have two op­tions: Firstly, they may submit a request for delisting through the state of their citizenship or residence. Any state is authorised to request the sanctions committee to remove a particular individual from the consolidated list; if no state objects, the individual is removed.³⁸ Secondly, since 2009, designated persons have the possibility to challenge their listing by directly con­sulting the Ombudsperson.³⁹ Following this, an ‘independent' and ‘impartial' person, with the help of a monitoring team composed of independent experts, reviews the requests and presents a ‘Comprehensive Report' to the Sanctions Committee on whether the persons shouldss.

[...]

¹ See, in particular, Bierstecker, T. and Eckes, C., ‘Watson Institute, Due Process and Targeted Sanctions: An Up­date of the “Watson Report”' (December 2012), Cameron, I., ‘The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions' , Report by the Council of Europe (2006) and Fassbender, B., ‘Targeted Sanctions and Due Process. The responsibility of the UN Security Council to ensure that fair and clear procedures are made available to individuals and entities targeted with sanctions un­der Chapter VII of the UN Charter', United Nations Office of Legal Affairs (2006).

² See, Sullivan, G. and Hayes, B., ‘Blacklisted: Targeted sanctions, preemptive security and fundamental rights, European Center for Constitutional and Human Rights (2010).

³ Former UN Secretary-General Kofi Annan at the Security Council's meeting on justice and the rule of law (24 September 2003).

⁴ See Oette, L., ‘Oil for Food Programme', in Wolfrum, R. (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2013), VII: 960.

⁵ See Ibid.

⁶ All UN sanctions imposed since 1994 have been targeted. Comprehensive sanctions against Iraq remained in place until 2003. See Bierstecker, T. and Eckes, C., ‘Effectiveness of United Nations Targeted Sanctions: Findings from the Targeted Sanctions Consortium (TSC)' (November, 2013), 9.

⁷ Sullivan/Hayes (2010), 11.

⁸ See Eriksson, M., Targeting Pease. Understanding UN and EU Targeted Sanctions (Ashgate, 2011), 3.

⁹ Ibid.

¹⁰ See Global Policy Forum (GPF), ‘1267 Committee and the Office of the Ombudsperson', online, at www.global- policy.org/security-council/index-of-countries-on-the-security-council-agenda/sanctions/1267-committee-and- the-office-of-the-ombudsperson.html.

¹¹ See Security Council Report, 3 Special Research Report (25 November 2013), online, at www.securitycouncilre- port.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/special research report sanc­tions 2013.pdf .

¹² Ciampi, A., ‘Security Council Targeted Sanctions and Human Rights', in Fassbender, B., Securing Human Rights?: Achievements and Challenges of the UN Security Council (Oxford University Press, 2011), 102.

¹³ UN Doc. S/RES/1267 (15 October 1999).

¹⁴ See Financial Action Task Force, ‘International best practices: Targeted financial sanctions related to terrorism and terrorist financing (recommendation 6)' (2003), 3.

¹⁵ See Cortright, D., Lopez, G. and Gerber-Stellingwerf, L., ‘The Sanctions Era: Themes and Trends in UN Security Council Sanctions since 1990', in Lowe, V., Roberts, A. et al., (eds.) The United Nations Security Council and War (Oxford University Press, 2008), 218 and Zgonec-Rozej, M., ‘Kafka, Sisyphus, and Bin Laden: Challenging the Al- Qaida and Taliban Sanctions Regime', Essex Human Rights Review 8 (2011), 70.

¹⁶ See Zgonec-Rozej (2011), 70.

¹⁷ UN Doc. S/RES/1267 (15 October 1999).

¹⁸ See Zgonec-Rozej (2011), 97.

¹⁹ UN Doc. S/RES/1390 (28 January 2002), paras. 2 (b) and (c), 4.

²⁰ See UN Doc. S/RES/1989 (17 June 2011).

²¹ See Ciampi (2011), 105.

²² See UN Doc. S/RES/1267 (1999).

²³ See Ibid. Since the expansion of the regime through Resolution 2253 (2015) the Sanctions Committee is known as the ‘1267/1989/2253 ISIL (Da'esh) and Al-Qaida Sanctions Committee'. See UN Doc. S/RES/2253 (17 Decem­ber 2015).

²⁴ See UN Doc. S/RES/1267 (1999).

²⁵ Guidelines of the Committee for the Conduct of its Work, Security Council Committee pursuant to Resolutions 1267 (1999) and 1989 (2011) Concerning Al-Qaida and associated individuals and entities (7 November 2002).

²⁶ See ‘Letter dated 2 September 2005 from the Chairman of the Security Council Committee established pursu­ant to resolution 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities ad­dressed to the President of the Security Council', S/2005/572 (2 September 2005).

²⁷ See Sullivan/Hayes (2010), 15-16.

²⁸ See Garvey, J., ‘Targeted Sanctions: Resolving the International Due Process Dilemma', 50/Special Issue Texas International Law Journal (2016), 560.

²⁹ UN Doc. S/RES/1904 (17 December 2009). Since 2015 the office is reshaped to the ‘ Office of the Ombudsper­son to the ISIL (Da'esh) and Al-Qaida Sanctions Committee'. See UN Doc. S/RES/2253 (17 December 2015).

³⁰ Zgonec-Rozej (2011), 71.

³¹ See Guidelines of the Security Council Committee Pursuant to Resolutions 1267 (1999) and 1989 (2011) Con­cerning Al-Qaida and Associated Individuals and Entities (adopted 7 November 2002; last time amended 15 April 2013), para. 6(g). See Murphy, C., EU counter-terrorism law: Pre-emption and the Rule of Law (Hart, 2012), 118 and Zgonec-Rozej (2011), 71.

³² Guidelines of the Security Council Committee (adopted 7 November 2002; last time amended 15 April 2013), para. 6(d).

³³ See Murphy (2012), 118.

³⁴ See, in particular, Cameron (2006), 5.

³⁵ See Sullivan/Hayes (2010), 12.

³⁶ Cameron (2006), 5.

³⁷ Ibid.

³⁸ See Guidelines of the Security Council Committee (adopted 7 November 2002; last time amended 15 April 2013), para. 4.

³⁹ See Zgonec-Rozej (2011), 71.

⁴⁰ See Ibid.

⁴¹ See Prost, K., ‘UN Sanctions, Human Rights and the Ombudsperson', International Law Summary, Chatham House (2013), 5.