UN SYSTEM FOR DESIGNATING TERRORISTS IS FALTERING

By Victor Comras

The UN system for designating terrorists is weak, under attack, and needs to be reformed. That is the thesis I present in an article just published online in Perspectives on Terrorism. And the challenges are coming from all sides.

In Europe the EU’s Advocate General, Miguel Poiares Maduro has sided with terrorist financier Yassin Kadi and is calling on the European Court of Justice to lift its directive imposing sanctions against Kadi, and possibly others who have been designated by the UN’s Al Qaida and Taliban Sanctions Committee. (See Jonathan Winer's Blog). This is not because Maduro doubts the role Kadi played in financing terrorism, but rather, because he questions the method of his designation by the UN. The UN designation process, he argues, violates rights guaranteed by the European Convention of Human Rights and Fundamental Freedoms. Similar challenges are being made in several countries, including in the United States.

Political challenges have also been launched in the European Parliament, the Council of Europe, and national parliaments around the world. And voices are being raised within the United Nations calling for current 1267 Committee designation procedures to be reformed. This controversy has already led many governments, never eager to participate in the designation process, to refrain from submitting names to the 1267 Committee; and now threatens to seriously undercut designation as a primary weapon and methodology in the war against terrorism financing.

Responding to criticism, the Security Council, in resolution 1730 (2006) established procedures to consider delisting requests. But these measures fall well short of the steps called for. This was the result of reluctance on the part of several countries, including the United States, to subject national judgments on delisting to third party review. That resolution did establish a Focal Point in the Secretariat to receive de-listing requests, but limited its function to forwarding the requests to appropriate governments, and to the full committee for follow-up. Advocate General Maduro complained in his Kadi case filing that “There is no obligation on the Sanctions Committee actually to take the views of the petitioner into account. Moreover, the de-listing procedure does not provide even minimal access to the information on which the decision was based….. In fact, access to such information is denied regardless of any substantiated claim as to the need to protect its confidentiality.”

What Needs To Be Done

Whatever the outcome of the Kadi case, reform will be necessary to maintain and improve the effectiveness of the UN designation system. Such reform must serve to better impede terrorist mobility and funding; but must also consider the sensitivities of intelligence gathering; the right of those designated to be heard in their defense; and the need for independent oversight to guard against abuse. The first step must be to put in place improved procedures, guidelines and standards for accurately identifying and listing all those organizations, actors and supporters that manage, run and maintain al-Qaida and the Taliban. While including all al-Qaida and Taliban foot-soldiers would be impracticable, targeting key personnel and entities, including those providing resources and funding to them, is essential.

A way must also be found to reduce the political and intelligence sensitivities often associated with presenting names to the Al-Qaida and Taliban Committee for designation. To this end, an independent monitoring group should be empowered to propose names (along with supporting justifications) to the committee. INTERPOL and other international enforcement agencies might also be enlisted in this process. This would provide additional insulation to governments sensitive about themselves initiating the designation process.

The Focal Point concept, which now provides little more than postmen services, should take on an expanded expert/advocacy role - that is, to also serve as a panel empowered to consider substantiating or rebutting information provided by a petitioner seeking delisting. If the panel finds some merit in the petition, it might then formally present the petitioners case and invite the interested countries, including those that had requested the designation, to respond, in camera, if necessary. In any event the final determination for de-listing should remain with the Al Qaida and Taliban Committee.

These steps are essential to re-invigorating the UN Designation Process.

To Read my full discussion and article on this subject click here

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