International Commission of Jurists Report Faults UN, EU and US Terrorism Designation Procedures

By Victor Comras

The International Commission of Jurists has just published the report of a special blue ribbon panel on the conduct of the war on terrorism and its effect on international law and human rights. The report concludes that Western democracies, along with most of the rest of the world, went well overboard in sacrificing established principles of international law and human rights in the quest to defeat terrorism. Among the measures criticized in the report is the increased and overlapping use of “designation lists” by the United Nations, the European Union and the United States to identify, freeze the assets and restrict the movement of persons and organizations suspected of supporting terrorism. The group is particularly critical (as shown in the excerpts below) of the lack of due process procedures, either prior to, or after, listing, to assure against error or abuse.

Identifying and freezing the assets of persons, groups, and organisations involved in terrorism are clearly acceptable, and possibly even necessary, tactics in effectively combating terrorism. However, the Panel received virtually uniform criticism of the listing system as it presently operates. The UN sanctioning of lists is seen as arbitrary and inconsistent with the obligations of States under international human rights law. This can cause difficulties for Member States if they try to abide by UN procedures. On the one hand they have human rights obligations by which they are bound, and on the other hand they have obligations to implement decisions under Chapter VII of the UN Charter. This may give rise to legal challenges in domestic and international tribunals. In this regard, the report welcomes a recent landmark decision of the European Court of Justice, which ruled that the implementation within the EU of listings by the Security Council have to be measured for their full compliance with human rights law. (See Executive Summary page 13)

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“Affected persons or entities are rarely given an effective opportunity to challenge their designation – before or after being designated. Even in situations where legal provisions exist to allow an appeal or review against listing before a judicial body, the remedy is often limited, with the aggrieved person having little or no opportunity to challenge facts, or the proportionality of the measures. Like other preventive mechanisms, the appeal process is characterized by secrecy, allowing for non-disclosure of key materials. Since the original information is often based on secret intelligence, or may originate from an earlier international listing decision, individuals and organizations have few remedies.” (See ICJ Report page 115 )

EU countries are still struggling with the effect of the European Court of Justice decision in the Yassin Kadi Case, and how to appropriately balance EU due process requirements with their UN obligations. Following the Kadi case decision the EU amended its procedures to institute a six month review procedure for all those under EU designation. However, many European jurists consider this as only a partial fix and are likely to challenge the designations measures further before the European Court.

US courts are also facing similar and increasingly sophisticated constitutional challenges to US designation procedures. Federal court rulings have held that while the government may designate individuals and entities without prior notice or challenge procedures, they must still afford sufficient post designation procedures to assure due process. And what constitutes sufficient due process is still being considered by the US District Court in Portland Oregon in the Al Haramain Oregon Case.

President Obama’s decision to order a full review of the non judicial legal proceedings involving the Guantanamo detainees, has given rise to both praise and criticism. One can expect that he will now face increasing pressure to also order a review of US designations pursuant to his executive authority under the International Emergency Economic Powers Act (IEEPA). A new review of designation procedures is now being conducted by the the UN Al Qaeda and Taliban Sanctions Committee. (See my article on the need for such a review here). In this regard, the International Commission of Jurist Report recommends adoption of the following principles:

• The Criteria leading to listing should be clear, publicly available and non discriminatory.
• The listing must be strictly time-limited and subject to limited renewal.
• There must be sufficient notification to the affected parties.
• Opportunities must be accorded to rectify errors.
• There must be an effective remedy to allow decisions to be contested,
• There must be independent review mechanisms.

(ICJ report page 122)

Preserving designation as an effective international tool for combating terrorism and terrorism financing must remain a high priority objective of the Obama Administration. The first step must be recognition that the designation system as now constituted is under broad international human rights attack. We must seriously consider how it can be reformed to address the most serious of these concerns. Steps should be taken expeditiously to review these procedures, to clarify designation criteria and to provide a clear and meaningful post-designation review process with judicial oversight.